05a01000
03-30-2001
Wallace R. Welter, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Wallace R. Welter v. Department of Transportation
05A01000
03-30-01
.
Wallace R. Welter,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Request No. 05A01000
Appeal No. 01A01631
Agency No. 4-99-4122
DENIAL REQUEST FOR RECONSIDERATION
INTRODUCTION
On July 6, 2000, Wallace R. Welter (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Wallace R, Welter v. Rodney E. Slater,
Secretary, Department of Transportation, EEOC Appeal No. 01A01631
(June 16, 2000). EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. � 1614.405(b). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or more
of the following two criteria: the appellate decision involved a clearly
erroneous interpretation of material fact or law; or the decision will
have a substantial impact on the policies, practices or operations of
the agency. Id. For the reasons set forth herein, complainant's request
is DENIED.
ISSUE PRESENTED
The issue presented herein is whether complainant has meet the criteria
for reconsideration set forth at 29 C.F.R. � 1614.405 (b).
BACKGROUND
Complainant, on September 30, 1999, received the agency's final decision.
Under normal circumstances, his appeal should have been filed with
the Commission on or before November 1, 1999.<1> According to the
previous decision, complainant did not file his appeal until December 10,
1999. Therefore, his appeal was dismissed. In his request to reconsider
(RTR), complainant maintained that the previous decision erred in
finding that his appeal was filed on December 10, 1999. According to
complainant, his appeal was signed and dated October 14, 1999, and sent
by regular mail to the Commission on October 22, 1999. Complainant also
maintained that copies of his appeal were sent by certified mail to the
agency and were received on October 26, 1999. Complainant submitted
an unsworn statement, dated July 6, 2000, by an unidentified woman who
has the same last name as complainant. According to this individual,
she mailed complainant's appeal to the Commission on October 22, 1999.
Finally, because of the merits of his formal complaint, complainant argued
that previous decision will have a substantial impact on the policies,
practices or operations of the agency.
The agency opposed the RTR on the grounds that complainant failed to
meet the applicable criteria for reconsideration.
ANALYSIS AND FINDINGS
In order to merit the reconsideration of a prior Commission decision,
the requesting party must submit written argument or evidence which
tends to establish that at least one of the criteria of 29 C.F.R. �
1614.405(b) has been met. The Commission's scope of review on a request
for reconsideration is narrow. Lopez v. Department of the Air Force,
EEOC Request No. 05890749 (September 28, 1989). A reconsideration
request is not merely a form of a second appeal. Regensberg v. USPS,
EEOC Request No. 05900850 (September 7, 1990). The Commission finds that
complainant's request does not meet the regulatory criteria of 29 C.F.R. �
1614.405 (b). A review of the record indicates that the agency's response
to complainant's appeal was filed on December 10, 1999, and that this
date was mistakenly relied upon by the Commission's Office of Federal
Operations (OFO) and the previous decision as the date that complainant
filed his appeal.<2> However, we find no persuasive evidence that would
establish that complainant's appeal was filed on or before November 1,
1999. Prior to receiving the agency's response to the appeal on December
10, 1999, the Commission had not received anything on this matter.<3>
According to complainant, his appeal to the Commission was sent by regular
mail; therefore, there are no certified mail return receipts that would
establish a postmark or delivery date. In his RTR, complainant stated
that he was enclosing copies of the certified mail return receipts
that would establish that the agency received copies of his appeal on
October 26, 1999. However, no receipts were provided to the Commission.
Furthermore, we note that although complainant maintained that his notice
of appeal �was clearly dated October 14, 1999,� the copy of the notice
that was enclosed with the agency's December 10, 1999 submission provided
no date. Therefore, other than the unsworn statement mentioned above,
we have no corroborating evidence to support complainant's claim that his
appeal was filed on or before November 1, 1999. Without such evidence,
the Commission is unable to find that reconsideration of the previous
decision is warranted in this case. Finally, we note that the previous
decision did not address the merits of complainant's claim that the
agency's pay plan for its Air Traffic Controllers was discriminatory;
therefore, we find no persuasive evidence that the decision will have
a substantial impact on the policies, practices or operations of the
agency.
CONCLUSION
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that complainant's
request does not meet the criterion of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to DENY the request. The decision
in EEOC Appeal No. 01A01631 (June 16, 2000) remains the Commission's
final decision. There is no further right of administrative appeal on
the decision of the Commission on this request for reconsideration.
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
_____03-30-01_________________________
Date
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
______________________________
1The 30th-day, October 30, 1999, was a Saturday. Therefore, pursuant
to 29 C.F.R. � 1614.604(d), complainant had until Monday, November 1,
1999, to file his appeal in a timely manner.
2A facsimile of the agency's response was received by the Commission on
December 10, 1999. Subsequently, a copy, which was postmarked December
10, 1999, was received by the Commission on December 28, 1999.
3The agency, in an appellate submission, argued that complainant �[d]id
not file his appeal until nearly three months after he had received the
FAD.� Consequently, the agency requested that the appeal be dismissed
on timeliness grounds. The record is unclear as to whether the agency's
assertion was referring to the date that it received complainant's
appeal.