Mark F. Riden, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 30, 1999
05970844 (E.E.O.C. Sep. 30, 1999)

05970844

09-30-1999

Mark F. Riden, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Mark F. Riden, )

Appellant, )

) Request No. 05970844

v. ) Appeal No. 01965680

)

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

INTRODUCTION

On June 23, 1997, Mark F. Riden (hereinafter referred to as appellant)

initiated a request to the Equal Employment Opportunity Commission

(Commission) to reconsider the decision in Mark F. Riden v. John

H. Dalton, Secretary, Department of the Navy, EEOC Appeal No. 01965680

(May 30, 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 a misapplication

of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of

such exceptional nature as to have substantial precedential implications,

29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, appellant's

request is denied.

ISSUE PRESENTED

The issue presented herein is whether the previous decision properly

affirmed the agency's decision to deny appellant's request for an

administrative hearing as being untimely.

BACKGROUND

The record in this case reveals that appellant filed a formal EEO

complaint in August 1995, raising various allegations of sex (male), age

(over 40), disability (unspecified), and reprisal discrimination with

regard to his termination during his probationary period. The agency

accepted the complaint for processing. Following the investigation,

the agency notified appellant and his designated attorney representative

of the right to request either an administrative hearing or a final

agency decision. The notice specifically provided that a request

for a hearing must be made within 30 calendar days of the receipt of

the notice. According to the record, the notice and investigative file

were received at the attorney representative's address of record on May

15, 1996, as evidenced by a postmark on the postal return receipt card.

Nevertheless, the hearing request was not submitted until June 19, 1996.

The agency then issued a decision denying appellant's request for a

hearing on the grounds that it was untimely filed, and forwarding the

matter for a final decision on the merits. The previous decision affirmed

the agency's decision denying appellant's request for a hearing.

In his request for reconsideration, appellant asserted that his request

for a hearing was timely, because he did not receive the notice until

May 20, 1996. Appellant submitted copies of the agency's letter

of acceptance, notice of the right to request a hearing, and letter

acknowledging receipt of the request, all of which were contained in

the record. Appellant also included copies of a receipt for certified

mail and postal return receipt card, showing that his request was

mailed on June 19, 1996, and received by the agency on June 25, 1996.

Appellant acknowledged that the latter information was not submitted

on appeal. Appellant contended that the notice was misleading in that

it stated either he or his representative could request a hearing.

The agency countered that appellant's request did not meet the criteria

for reconsideration. The agency stated that it was justified in relying

upon appellant's designation of the attorney as his representative.

ANALYSIS AND FINDINGS

As discussed above, the Commission may, in its discretion, reconsider

any previous decision when the party requesting reconsideration submits

written argument or evidence which tends to establish that any of the

criteria of 29 C.F.R. �1614.407(c) is met. In order for a case to

be reconsidered, the request must contain specific information which

meets the requirements of this regulation. It should be noted that the

Commission's scope of review on a request to reconsider is limited. Lopez

v. Department of the Air Force, EEOC Request No. 05890749 (September

28, 1989).

The Commission initially notes that the EEOC Regulations do not provide

for interlocutory appeals from determinations regarding hearing requests.

Nevertheless, the agency's July 1996 letter advising appellant that his

hearing request was untimely contained appeal rights to the Commission.

The Commission, therefore, will exercise its discretion and rule on

this matter.

After a careful review of the previous decision, appellant's request for

reconsideration, the agency's response thereto, and the entire record,

the Commission finds that appellant's request fails to meet the criteria

in 29 C.F.R. �1614.407(c). Specifically, appellant has presented no

evidence to show that the agency's decision to deny his untimely hearing

request was improper. Further, we find that the information submitted

by appellant does not constitute new and material evidence, in that the

documents were either contained in the record or available at the time

the previous decision was issued.

EEOC Regulation 29 C.F.R. �1614.605(d) provides that, when the complainant

designates an attorney as a representative, service of documents and

decisions shall be made on the attorney and not on the complainant,

and the time frames for receipt of materials by the complainant shall be

computed from the time of receipt by the attorney. As stated, the record

shows that appellant's designated attorney representative received the

investigative file and notice on May 15, 1996. While appellant's attorney

stated on appeal that he was under the impression that he would not be

representing appellant at the time he received the notice, there is no

evidence that the agency was so notified, and, in fact, appellant does not

make such an assertion.<1> Further, appellant's attorney confirmed, by

letter dated July 7, 1996, that he was continuing to represent appellant.

Consequently, based on our review of the record, we find that appellant

has failed to provide evidence which would warrant a reconsideration of

the previous decision.

CONCLUSION

After a review of appellant's request for reconsideration, the agency's

response thereto, the previous decision, and the entire record, the

Commission finds that appellant's request fails to meet the criteria

of 29 C.F.R. �1614.407(c), and it is therefore the decision of the

Commission to DENY appellant's request. The decision in EEOC Appeal

No. 01965680 (May 30, 1997) remains the Commission's final decision.

There is no further right of administrative appeal on a decision of the

Commission on this Request for Reconsideration.

STATEMENT OF RIGHTS - ON 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:

09-30-99

Date Frances M. Hart

Executive Officer

Executive Secretariat1It is noted

that appellant's attorney also stated

that he did not specifically discuss

with appellant whether he desired

continued representation.