Ollie M. Darby, Complainant,v.Bill Richardson, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionMar 30, 2000
05a00066 (E.E.O.C. Mar. 30, 2000)

05a00066

03-30-2000

Ollie M. Darby, Complainant, v. Bill Richardson, Secretary, Department of Energy, Agency.


Ollie M. Darby v. Department of Energy

05A00066

March 30, 2000

Ollie M. Darby, )

Complainant, )

) Request No. 05A00066

v. ) Appeal No. 01985547

) Agency Nos. 98(077)OH; 98(078)OH;

) 98(079)OH; 98(080)OH;

) 98(081)OH

Bill Richardson, )

Secretary, )

Department of Energy, )

Agency. )

____________________________________)

DENIAL OF REQUEST FOR RECONSIDERATION

On October 17, 1999, Ollie M. Darby (complainant) initiated a request to

the Equal Employment Opportunity Commission (Commission) to reconsider

the decision in Ollie M. Darby v. United States Department of Energy,

EEOC Appeal No. 01985547 (September 14, 1999).<1> The United States

Department of Energy (agency) initiated an untimely cross request for

reconsideration on October 29, 1999, in an effort to have the Commission

review the same decision. EEOC Regulations provide that the Commissioners

may, in their discretion, reconsider any previous Commission decision

where the requesting party demonstrates that: (1) the appellate decision

involved a clearly erroneous interpretation of material fact or law; or

(2) the appellate decision will have a substantial impact on the policies,

practices, or operations of the agency. See 64 Fed. Reg. 37,644,

37,654 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �

1614.405(b)). For the reasons set forth herein, both the agency's and

the complainant's requests for reconsideration are denied.

ISSUE PRESENTED

The issue presented herein is whether the previous decision properly

affirmed the agency dismissal of complaints 98(077)OH, 98(078)OH and

98(079)OH for untimely filing and properly reversed the agency finding

that complaints 98(080)OH and 98(081)OH were untimely filed.

BACKGROUND

On June 5, 1998, the agency issued a final decision dismissing the

following five complaints: 98(077)OH; 98(078)OH; 98(079)OH; 98(080)OH;

and 98(081)OH, on the ground that complainant failed to file the formal

complaints within the fifteen-day limitation period. The agency found

that complainant received the right to file a formal complaint on

March 26, 1998 in all five complaints and complainant filed the formal

complaints on April 13, 1998. Thus, more than fifteen days elapsed after

she received the right to file a formal complaint.

In the previous decision, the Commission found that complainant in fact

filed all five complaints on April 13, 1998. However, the record also

disclosed that the agency failed to submit proof that the complainant

did in fact receive the notice to file a formal complaint in cases

98(080)OH and 98(081)OH. Therefore, the previous decision reversed the

agency findings that with regard to these cases that the complaints were

untimely filed. The Commission, in the previous decision, did affirm

the agency's finding with respect to cases 98(077)OH, 98(078)OH and

98(079)OH, that the complaints were untimely filed.

October 17, 1999, complainant submitted a request for reconsideration.

However, the request supplied the Commission with no evidence

demonstrating that the previous decision involved a clearly erroneous

interpretation of material fact or law, or that the previous decision will

have a substantial impact on the policies, practices or operations of

the agency. Rather, complainant submitted a thirty-one-page facsimile

document raising the same arguments that he raised before the Commission

on appeal.<2>

October 29, 1999, the agency, also submitted a request for

reconsideration, which the Commission will treat as a cross request

for reconsideration.

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. � 1614.405 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).

In the present case, complaints 98(077)OH, 98(078)OH and 98(079)OH were

dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified

at and hereinafter referred to as 29 C.F.R. � 1614.106 (b), for failure

to file the formal complaint within fifteen days after receiving the

notice to file a formal complaint. On request, as well as on appeal,

complainant has argued that she had been misled by the agency causing

her to file the complaints in an untimely fashion. However, the record

is void of any evidence to support a finding that the agency in any

way misled the complainant. In fact, the record clearly demonstrates

that complainant received the notice to file a formal complaint on

March 26, 1998 with respect to the above cases Id., and she filed a

formal complainant eighteen days later on April 13, 1998. Therefore,

the Commission finds no reason to disturb the previous decision.

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

previous decision, and the entire record, the Commission finds that the

complainant's request does not meet the criteria of 29 C.F.R. � 1614.405.

Specifically, the complainant has presented no evidence to demonstrate

that the previous decision, affirming the dismissal of cases 98(077)OH,

98(078)OH and 98(079)OH was improper.

The agency on October 29, 1999 also submitted a request for

reconsideration with respect to case 98(081)OH. The Commission treats

this request as a cross request for reconsideration. Upon review of

the record, the Commission finds that the agency's request was untimely

submitted. Volume 64 Fed. Reg. 37,644, 37,659 (1999) ( to be codified at

and hereinafter referred to as 29 C.F.R. � 1614.402(a)), in pertinent

part, provides that appeals must be submitted within thirty days of

receipt of the decision. Here, the record reflects, that the agency

received the previous decision on September 16, 1999, and thereafter,

filed the request for reconsideration on October 29, 1999, clearly

in excess of the thirty days allotted under 29 C.F.R. � 1614.402.

Furthermore, on request, the agency has failed to provide any evidence

to warrant an extension or waiver of the thirty day limitations period

pursuant to 64 Fed. Reg. 37, 644, 37,661 (1999) ( to be codified at and

hereinafter referred to as 29 C.F.R. � 1614.604). Accordingly, it is

the decision of the Commission to deny the agency's cross request for

reconsideration because it was untimely submitted.

CONCLUSION

After a review of complainant's request for reconsideration and the

agency's cross request for reconsideration, the previous decision, and the

entire record, the Commission finds complainant's request does not meet

the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the

Commission to deny complainant's request. Furthermore, the agency's cross

request is untimely and will not be considered. Therefore, the decision

of the Commission in EEOC Appeal No. 01985547 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.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)

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 WITHIN NINETY (90) CALENDAR DAYS from the date that you receive

this decision. 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 (Z1199)

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:

March 30, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____________ __________________________

Date Equal Employment Assistant

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2Pursuant to Volume 64 Fed. Reg. 37,644, 37,659 (1999) ( to be codified

at and hereinafter referred to as 29 C.F.R. � 1614.403(d)), either

party may submit a request for reconsideration by facsimile if the

document is ten pages or less. In this case, complainant has submitted

a thirty-one page document thus violating 29 C.F. R. � 1614.403(d).

On this ground, the Commission denies complainant's request. However,

the Commission exercises its discretion on its own motion to reconsider

the previous decision.