Moses Thomas, Jr., Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionJan 4, 1999
05970401 (E.E.O.C. Jan. 4, 1999)

05970401

01-04-1999

Moses Thomas, Jr., Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Moses Thomas, Jr. v. Department of the Navy

05970401

January 4, 1999

Moses Thomas, Jr., )

Appellant, ) Request No. 05970401

) Appeal No. 01963654

v. ) Agency No. DON9665115A02

)

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

________________________________)

DENIAL OF RECONSIDERATION

On January 21, 1997, Moses Thomas, Jr. (hereinafter referred to

as appellant) timely initiated a request to the Equal Employment

Opportunity Commission (the Commission) to reconsider the decision

in Thomas v. Dep't of the Navy, EEOC Appeal No. 01963654 (December

18, 1996). 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, appellant's request is denied.

ISSUE PRESENTED

The issue presented is whether appellant's request meets any of the

statutory criteria for reconsideration.

BACKGROUND

In December 1995, appellant--a GS-11 Housing Manager--filed an EEO

complaint alleging discrimination based on race (Afro-American) and color

(black) in conjunction with the agency's failure to promote him after

his position was reclassified to a higher grade level and reprisal for

withholding information from management. On the complaint form, appellant

indicated that he was represented by an attorney located in Germany.

Appellant gave his own address as San Francisco, California and the

location of his employing facility as Yokosura, Japan.

In a February 6, 1996 letter addressed to appellant's attorney, the

agency requested that appellant provide additional information to

clarify his complaint. Appellant was advised that he had 15 days from

the date of his receipt of the agency's letter to submit a response

and that his failure to respond could result in the dismissal of his

complaint. A postal return receipt card bearing appellant's address in

San Francisco, California showed that appellant received a copy of the

letter on February 12, 1996. There is no postal return receipt card

for the attorney located in Germany.

In its March 26, 1996 final decision (FAD), the agency noted that it

had received no response from appellant and dismissed the complaint

for that reason. A postal return receipt card showed that the attorney

received the FAD on April 11, 1996. There is no postal return receipt

card for appellant.

On April 8, 1996, appellant appealed from the FAD. In its June 14,

1996 response brief, the agency--inter alia--indicated that "to date"

it had received no response providing the requested information from

either appellant or his attorney. Upon review, the previous decision

affirmed the FAD finding that appellant had not responded to the agency's

request and that appellant had not provided any statement in support of

his appeal.

In his reconsideration request, appellant--through counsel--contended

that the agency erred in dismissing his complaint.

In response, the agency asserted that it has never received a response

from appellant providing the information requested in its February 6,

1996 letter.

ANALYSIS AND FINDINGS

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 at least one of the criteria

of 29 C.F.R. �1614.407(c) is met. For a decision to be reconsidered,

the request must contain specific information that meets the criteria

referenced above.

Appellant asserted that contrary to the previous decision's finding, he

submitted a statement in support of his appeal when he initially filed

the appeal. Appellant further asserted that he also later "forwarded an

affidavit," a copy of which he attached to his reconsideration request.

Appellant contended that he and his attorney did not receive the agency's

February 6, 1996 letter until after the 15 day time period allowed by

the agency. According to appellant's affidavit, he had relocated to

the United States and, even though he had advised the EEO Office of his

change of address, "they forwarded correspondence to my Army Post Office

Address in Japan." Finally, appellant asserted that he responded to the

agency's request for information but that the agency refused to consider

the response because it was received after the 15 day time limit.

Record evidence showed that appellant's appeal consisted of the

Commission's one page appeal form (EEOC Form 573) and a copy of the FAD.

No supporting statement was attached to the appeal form. Appellant

did not submit a copy of this supporting statement, or reiterate any

arguments made therein, in conjunction with his reconsideration request.

The agency's February 6, 1996 letter advised appellant that he had 15

days from the date of his receipt of the letter to provide information

clarifying his complaint. That is, the agency did not specify a particular

15-day time period, only that the time period would begin upon receipt of

the letter. The postal return receipt card was addressed to appellant

at his San Francisco, California address and was signed for on February

12, 1996. The postal return receipt card was date stamped by the United

States Postal Service's facility in San Francisco, California. The

Commission finds that appellant received the agency's letter at his San

Francisco, California address on February 12, 1996.

A review of the record failed to show any response from appellant that the

agency refused to consider because of untimeliness. The sole document

responding to the agency's request for information was appellant's

affidavit which he submitted with his reconsideration request. The

affidavit was dated August 15, 1996--six months after appellant received

the agency's February 1996 letter and four months after appellant filed

his appeal. The Commission notes the agency's assertions--made both in its

response to appellant's appeal and his reconsideration request--that it

never received any response from appellant with respect to its February

1996 letter.

Based on the foregoing, the Commission finds that appellant failed to

respond to the agency's request for information. Because appellant's

request fails to meet the criteria for reconsideration, the Commission

denies the request for that reason.

CONCLUSION

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

agency's response, the previous decision, and the record as a whole,

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

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

deny the request. The decision in EEOC Appeal No. 01963654 (December

18, 1996) remains the Commission's final decision. There is no further

right of administrative appeal from a decision of the Commission on a

request for reconsideration.

STATEMENT OF RIGHTS--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 4, 1999

Date Frances M. Hart

Executive Officer

Executive Secretariat