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