05981007
11-05-1999
Roger G. Daigle Appellant, Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Roger G. Daigle v. Department of Veterans Affairs
05981007
November 5, 1999
Roger G. Daigle )
Appellant, )
)
) Request No. 05981007
) Appeal No. 01976446
Togo D. West, Jr., ) Agency No. 97-1821
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DENIAL OF REQUEST TO RECONSIDER
On July 30, 1998, the appellant filed a timely request to the Equal
Employment Opportunity Commission to reconsider its decision in Roger
Daigle v. Department of Veterans' Affairs, EEOC Appeal No. 01976446 (June
24, 1998). The agency also requested reconsideration of the previous
decision on July 24, 1998.
The Commission may, in its discretion, reconsider any previous decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence that tends to establish one or more of the
following three criteria: (1) new and material evidence is available
that was not readily available when the previous decision was issued;
(2) the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy;
or (3) the decision is of such exceptional nature as to have substantial
precedential implications. 29 C.F.R � 1614.407(c)(1), (2), and (3).
The issue presented by appellant is whether the previous decision
affirming the agency's dismissal of several allegations is exceptional
in nature and has substantial precedential implications such that it
should be reconsidered. The issue presented by the agency is whether the
previous decision remanding for investigation two non-selections<1>,
constituted an erroneous interpretation of material fact and a
misapplication of established policy.
We do not agree with appellant that the previous decision concerns an
exceptional legal issue or has any precedential implications. Other than
a blanket declaration, appellant offers no further reason to support
his claim. His claim is therefore, denied.
The agency offers additional evidence to bolster its claim that two
remanded non-selections should still be dismissed for untimely EEO
counselor contact and because the appellant failed to cooperate in
providing information. The agency is careful not to refer to the
evidence as new and material presumably because it was evident at the
time of the previous decision. For the reasons discussed below, the
agency's arguments fail to meet the requirements for reconsideration.
The previous decision reversed and remanded for investigation the agency's
dismissal of two non-selections on the grounds that the agency erred in
finding that appellant had failed to cooperate. The agency did not raise
the issue of untimely EEO counselor contact and the record contained no
evidence of the dates of the non-selections.
The agency now advises us that the first number of the vacancy
announcement indicates the date of the announcement. The agency reasons
that the first announcement, 4-2, occurred in 1994 which necessarily means
that appellant's EEO counselor contact on October 17, 1996, was untimely.
The same argument is urged for the second announcement, 5-60.
We are not persuaded by the agency's arguments for two reasons. First,
the agency does not provide new and material evidence as this evidence was
readily available at the time of the previous decision. Second, we cannot
infer from the date of the announcement when appellant's non-selection
occurred and thereby conclude that appellant's EEO counselor contact was
untimely. In this respect, we do not agree that the previous decision
contained an erroneous interpretation of the law or material fact or a
misapplication of established policy.
On review of appellant's and the agency's request to reconsider,
the previous decision and the entire record, the Commission finds
that both requests fail to meet the criteria for reconsideration. 29
C.F.R. �1614.407(c). The requests are therefore, denied. The decision
in EEOC Appeal No. 01976446 (June 24, 1998) 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 APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision 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 the 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
the 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 the 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:
11/5/99 ____________________________
Date Carlton M. Hadden
Acting Director
Office of Federal Operations
1The agency does not contest a third non-selection remanded at the same
time for investigation.