Joseph Randall, Jr. Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 20, 1999
05980606 (E.E.O.C. Jan. 20, 1999)

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