Melvin Waters, Sr., Appellant, Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
05990621 (E.E.O.C. Nov. 4, 1999)

05990621

11-04-1999

Melvin Waters, Sr., Appellant, Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Melvin Waters, Sr., )

Appellant, )

) Request No. 05990621

) Appeal No. 01982958

)

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

On June 18, 1998, Melvin Waters, Sr. (appellant) timely initiated a

request to the Equal Employment Opportunity Commission (the Commission)

to reconsider the decision in Melvin Waters, Sr. v. Robert E. Rubin,

Secretary, Department of the Treasury, EEOC Appeal No. 01982958

(December 3, 1998). 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 or 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, the appellant's request is denied.

The previous decision dismissed appellant's appeal as untimely filed.

The record reflects that appellant received the final agency decision

(FAD) on January 28, 1998, and that the appeal to the Commission carried

a postmark date of February 28, 1998. Because the record showed that the

agency advised appellant in the FAD of the time limits on his right to

appeal, and appellant filed the appeal more than thirty calendar days

after receiving the FAD, the previous decision dismissed the appeal

pursuant to 29 C.F.R. �1614.604(c).

In the request for reconsideration, appellant states that he entrusted

his appeal package to a friend, who offered to mail the appeal.

Appellant's friend submits an unnotarized declaration stating that

he mailed the appeal on February 27, 1998, prior to the deadline for

receiving that day's postmark date. After reviewing the record, the

Commission finds that appellant's request fails to meet the criteria of 29

C.F.R. �1614.407(c). While appellant submits new evidence in form of an

unnotarized declaration, the Commission finds that this evidence is not

persuasive because it does not overcome the legible postmark indicating

that the appeal was untimely filed. As a result, the Commission finds

that the decision in EEOC Appeal No. 01982958 (December 3, 1998) correctly

dismissed the appeal. There is no further right of administrative appeal

on 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:

November 4, 1999

Date Frances M. Hart

Executive Officer

Executive Secretariat