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