George L. Castillo, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionApr 26, 2000
05990843 (E.E.O.C. Apr. 26, 2000)

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.