Robert R. Mejia, Complainant,v.Rubin E. Rubin, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionMay 18, 2000
05990626 (E.E.O.C. May. 18, 2000)

05990626

05-18-2000

Robert R. Mejia, Complainant, v. Rubin E. Rubin, Secretary, Department of the Treasury, Agency.


Robert R. Mejia v. Department of the Treasury

05990626

May 18, 2000

Robert R. Mejia, )

Complainant, )

)

v. ) Request No. 05990626

) Appeal No. 01983497

Rubin E. Rubin, ) Agency No. 98408-M

Secretary, )

Department of the Treasury, )

Agency. )

)

DENIAL OF REQUEST FOR RECONSIDERATION

Robert R. Mejia (complainant) timely initiated a request to the Equal

Employment Opportunity Commission (EEOC or Commission) to reconsider

the decision in Robert R. Mejia v. Department of the Treasury, EEOC

Appeal No. 01983497 (March 16, 1999). EEOC regulations provide that

the Commissioners may, in their discretion, reconsider any previous

Commission decision. 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified

at and hereinafter referred to as 29 C.F.R. �1614.405(b)).<1> The

party requesting reconsideration must submit written argument or evidence

which tends to establish one of the following two criteria: either that

the appellate decision involved a clearly erroneous interpretation of

material fact or law, 29 C.F.R. �1614.405(b)(1); or that the decision

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

of the agency, 29 C.F.R. �1614.405(b)(2). For the reasons which follow,

complainant's request is DENIED.

On January 30, 1998, complainant, a former Revenue Officer, GS-1169-11,

filed a formal EEO complaint alleging that the agency discriminated

against him on various bases when it treated him unfairly during the

period May 1992 through June 1997, culminating in his retirement.

Complainant had initially contacted an EEO Counselor on January 7,

1998. During counseling, he informed the EEO Counselor that he had

not suspected discrimination until December 5, 1997, when he met with

a bankruptcy attorney.

After the formal complaint was filed, the agency requested complainant

to provide additional information regarding why he had not contacted an

EEO Counselor sooner. Complainant's attorney replied:

[Complainant] did not contact the EEOC (sic) within 45 days of his

retirement due to medical reasons and or (sic) disability. [Complainant]

went into a deep depression immediately after his retirement. He was

therefore unable to handle this matter until recently.

By final agency decision (FAD) dated March 19, 1998, the agency dismissed

the complaint for untimely EEO Counselor contact. The agency noted that

in order to excuse untimeliness, a complainant must have been totally

incapacitated. The agency further noted that complainant had suspected

discrimination long before even his retirement, as evidenced by a December

2, 1996, letter to his Division Chief in which he expressed his concern

that his supervisor had been failing to provide him with reasonable

accommodation. On appeal, complainant offered neither argument nor

evidence in support of his position. The previous decision affirmed

the FAD.

In his request for reconsideration, complainant presents two medical

reports which he argues support his position that he was unable to

contact an EEO Counselor in a timely fashion. It is noted that both of

these reports, one dated January 13, 1998, and the other dated February

13, 1999, were extant while the appeal was pending, but neither was

submitted to the Commission for consideration. In any event, neither

report addresses complainant's status in December 1996, when he first

expressed suspicions of discrimination; nor in June 1997, when he

retired; nor in January 1998, when he finally contacted an EEO Counselor.

Further, as the agency noted on appeal, complainant met with a bankruptcy

attorney on December 5, 1997, evidence that even if he had been totally

incapacitated in the past, he was at that time capable of managing his

affairs, yet still waited another 56 days to contact an EEO Counselor.

The Commission therefore finds complainant's argument to be without merit.

Complainant's request meets neither of the criteria for reconsideration,

and hereby is DENIED. The decision in Appeal No. 01983497 remains the

final decision of the Commission in this case. There is no further

right of administrative appeal from this decision.

STATEMENT OF RIGHTS

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)

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:

May 18, 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 Opportunity Specialist

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.