Stephen J. Pendrak, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 25, 1999
05990830 (E.E.O.C. Oct. 25, 1999)

05990830

10-25-1999

Stephen J. Pendrak, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Stephen J. Pendrak, )

Appellant, )

) Request No. 05990830

v. ) Appeal No. 01960414

)

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

)

DENIAL OF REQUEST FOR RECONSIDERATION

INTRODUCTION

Stephen J. Pendrak (the appellant) requested that the Equal Employment

Opportunity Commission (the Commission) reconsider its April 24,

1996 letter, which administratively closed EEOC Appeal No. 01960414.

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, 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 that follow, appellant's

request is denied.

ISSUE PRESENTED

The issue presented is whether appellant has provided adequate

justification for us to reopen EEOC Appeal No. 01960414.

BACKGROUND

Appellant filed a formal complaint with the agency on September 13,

1995. The agency issued its final agency decision (FAD) on September

19, 1995 dismissing the complaint. Appellant appealed the FAD to the

Commission on October 19, 1995. Appellant then sent a letter, dated

November 30, 1995, to the Commission requesting, among other things,

the withdrawal of his appeal. The letter was signed by appellant,

an agency representative, and by a third individual. Appellant then

sent another letter to the Commission, dated December 21, 1995, in

which he asked that we reopen his appeal because he had new evidence,

which included medical records enclosed with the letter. On April 24,

1996, the Commission administratively closed appellant's appeal because

he had requested the withdrawal of his complaint on November 30, 1995.

The Commission received correspondence about appellant's case on June

22, 1999, which included, among other documents submitted by appellant,

appellant's December 21, 1995 letter to the Commission requesting that

his appeal be reopened. These documents were docketed as a request for

reconsideration and assigned docket number 05990830. The Commission

again received correspondence about appellant's case on June 22, 1999,

which included a settlement agreement entered into by appellant in a

separate matter on June 15, 1999. The settlement agreement states,

in pertinent part:

1. The Agency will pay the Complainant $3,500.00 in full and complete

settlement of any and all outstanding complaints. This will take place

within 60 days from the date of signing this agreement.

Appellant alleges, in his August 16, 1999 letter to his Congressman,

that this settlement should be voided because the mediator was biased.<1>

ANALYSIS AND FINDINGS

After a careful review of the record, the Commission finds that

appellant's request for reconsideration fails to meet the criteria of 29

C.F.R. �1614.407(c). It is, therefore, the decision of the Commission

to deny appellant's request. The Commission finds upon review that

the plain reading of appellant's November 1995 letter indicates that

he clearly intended to withdraw his complaint. See generally Taylor

v. Department of Defense, EEOC Request No. 05950198 (July 25, 1996).

The letter is signed and dated both by appellant and by the agency.

Based on the foregoing, we decline to reopen the appeal after it has

been withdrawn by appellant; we find that appellant has not provided an

adequate justification for such an action.

CONCLUSION

After a review of appellant's request for reconsideration, the letter

closure, and the entire record, 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 his request. There is no further

right of an administrative appeal from a decision of the Commission on

a request to reopen.

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:

Oct. 25, 1999

______________ __________________________________

DATE Frances M. Hart

Executive Officer

1 Appellant can bring this matter to the attention of the agency,

specifically to the attention of the EEO Director.