05990843
04-26-2000
George L. Castillo, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
George L. Castillo, )
Complainant, )
) Request No. 05990843
v. ) Appeal No. 01973260
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
On July 2, 1999, the agency initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision
in George L. Castillo v. Rodney E. Slater, Secretary, Department of
Transportation, EEOC Appeal No. 01973260 (May 18, 1999).<0> EEOC
Regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision where the requesting party
demonstrates that: (1) the appellate decision involved a clearly erroneous
interpretation of material fact or law; or (2) the appellate decision
will have a substantial impact on the policies, practices, or operations
of the agency. See 64 Fed. Reg. 37,644, 37,654 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.405(b)).
A request for reconsideration must be filed within 30 days of receipt of
the previous appellate decision. 29 C.F.R. � 1614.405(b). A request
is timely filed if it is received or postmarked before the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified as 29 C.F.R. � 1614.604(b)).
A copy of the previous decision sent to the agency indicates that it was
received by the agency no later than May 24, 1999. We note, however,
that the agency's request for reconsideration was postmarked July 2, 1999,
which was 39 days after it received the prior decision. Not only did the
prior decision include a statement of rights apprising the agency of the
applicable time limit, but it specifically advised the agency that, if
extenuating circumstances prevented the timely filing of a request, the
agency had to submit with its request a written statement setting forth
the circumstances which caused the delay and any supporting documentation.
In this case, the agency has submitted nothing that would justify tolling
the applicable time limitations period. Accordingly, we find that its
request for reconsideration is untimely.
The Commission also notes, however, that there is evidence in the record
indicating that the complainant filed Civil Action No. 4-99-CV-375 in
the Northern District of Texas. A review of the complaint filed in that
proceeding reveals that it encompasses the allegation that was addressed
by the prior decision. For that reason, the complainant is notified
that the Commission's processing of his case is hereby terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified as 29 C.F.R. �1614.409).
Accordingly, it is the decision of the Commission to deny the agency's
request for reconsideration for untimeliness but to terminate processing
of the complainant's case based on his pending civil action.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. If you file a civil action,
YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE
OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS
OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may result in
the dismissal of your case in court. "Agency" or "department" means the
national organization, and not the local office, facility or department
in which you work.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the
sole discretion of the Court. Filing a request for an attorney does not
extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the
paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
April 26, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
01 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at WWW.EEOC.GOV.