05a50444
02-14-2005
Roy C. Bartholomae, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.
Roy C. Bartholomae v. Dept. of Health and Human Services
05A50444
February 14, 2005
.
Roy C. Bartholomae,
Complainant,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Request No. 05A50444
Appeal No. 01A33999
Agency No. CDC-NIOSH-003-2002
DENIAL
The complainant requested reconsideration of the decision in Roy
C. Bartholomae v. Dept. of Health and Human Services, EEOC Appeal
No. 01A33999 (December 14, 2004). EEOC Regulations provide that the
Commission may, in its discretion, grant a request to 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 29 C.F.R. � 1614.405(b).
By regulation, requests must be filed within thirty (30) calendar days
after the party receives the previous decision. 29 C.F.R. � 1614.405(b).
A document is timely if it is received or postmarked before the expiration
of the applicable filing period or, in the absence of a legible postmark,
if it is received by mail within five days of the expiration of the
applicable filing period. 29 C.F.R. � 1614.604(b).
It is noted that the Commission's previous decision included a
Certificate of Mailing indicating that, for purposes of timeliness,
the Commission will presume that the decision was received within five
(5) calendar days of the date on which it was mailed, December 14, 2004.
Complainant is presumed to have received the previous decision no later
than December 19, 2004 which he acknowledged in his request. Thirty days
from that date is January 18, 2005. As evidenced by the postage meter
date, Complainant mailed his request on Wednesday, January 19, 2005,
which was beyond the 30-day limit set by regulation. Complainant does
not give any reason for the delay.
For the foregoing reasons, the Complainant's request is denied. The
decision in EEOC Appeal No. 01A33999 remains the Commission's final
decision. There is no further right of administrative appeal on the
decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 14, 2005
__________________
Date