05980606
01-20-1999
Joseph Randall, Jr. Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Joseph Randall, Jr. v. Department of Veterans Affairs
05980606
January 20, 1999
Joseph Randall, Jr. )
Appellant, )
)
v. ) Request No. 05980606
) Appeal No. 01970202
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
On November 21, 1997, Joseph Randall, Jr. (appellant) timely initiated
a request to the Equal Employment Opportunity Commission (EEOC) to
reconsider the decision in Joseph Randall, Jr. v. Dept. Of Veterans
Affairs, EEOC Appeal No. 01970202 (October 24, 1997). EEOC Regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy,
29 C.F.R. �1614.407(c)(2); and the previous decision is of such
exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). Appellant's request is denied.
The record indicates that appellant contacted an EEO counselor on
January 26, 1996, complaining of discrimination based on disability when
he was not selected for two positions. Appellant was informed of his
non-selections for the two positions on October 30, 1995 and December 8,
1995 respectively. Appellant was not selected for the positions because
he did not provide evidence showing that he had the needed time-in-grade
for one or the specialized experience needed for the other. Appellant
asserts that because he is a veteran with a service related disability
(not identified), that he should have been given special consideration.
The agency dismissed the complaint for failure to contact an EEO counselor
in a timely manner. The agency noted that appellant indicated that he
was late in contacting the counselor because he contacted the union
first. Appellant appealed the dismissal to the Commission, and the
previous decision affirmed without substantive comment.
As a preliminary matter, the Commission notes that it has repeatedly held
that the initiation of other appeal processes does not toll the time
limit for seeking EEO counseling. See, e.g. Mathews v. United States
Postal Service, EEOC Request No. 05930887 (January 21, 1994), Okamatsu
v. United States Postal Service, EEOC Request No. 05980143 (March 26,
1998). Thus, appellant's contact with the union does not toll the time
limit for contacting the EEO counselor.
In his request for reconsideration, appellant mentions that the government
was closed due to a furlough for a period of time during the 45-day time
frame. As noted by appellant in his request, the government was closed
through the first week of January, and appellant did not contact the EEO
counselor until January 26, 1996. The Commission notes that there were
two weeks between the end of the furlough and when the time period for
contacting the EEO counselor expired (January 22, 1996). Appellant did
not provided any evidence that he acted with due diligence in attempting
to timely contact an EEO counselor during that time. Thus, appellant
has failed to provide justification for extending the time limits for
contacting the EEO counselor. 29 C.F.R. �1614.105(a)(2).
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds appellant's request
does not meet the criteria of 29 C.F.R. �1614.407(c), and it is the
decision of the Commission to deny appellant's request. The decision
of the Commission in Appeal No. 01970202 remains the Commission's final
decision. There is no further right of administrative appeal from the
decision of the Commission on this request for reconsideration.
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:
JAN 20, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat