05970592
11-23-1998
David L. Minish, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
David L. Minish v. Department of the Navy
05970592
November 23, 1998
David L. Minish, )
Appellant, )
) Request No. 05970592
v. ) Appeal No. 01964202
)
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
)
DENIAL OF RECONSIDERATION
On March 14, 1997, David L. Minish (hereinafter referred to as appellant)
initiated a request to the Equal Employment Opportunity Commission
(Commission) to reconsider the decision in David L. Minish v. John
H. Dalton, Secretary, Department of the Navy, EEOC Appeal No. 01964202
(February 14, 1997), received by appellant on February 21, 1997.
EEOC Regulations provide that the Commissioners may, in their discretion,
reconsider any previous 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 set forth herein, appellant's request is denied.
ISSUE PRESENTED
The issue presented herein is whether the previous decision properly
affirmed the agency's dismissal of appellant's complaint.
BACKGROUND
The record in the case herein reveals that appellant contacted an EEO
Counselor on March 1, 1996, and subsequently filed a formal complaint
alleging that he was discriminated against on the basis of his disability
(toxic impairment and asbestosis) when he was removed from employment
in December 1986 for threatening a supervisor. According to the record,
appellant filed an appeal with the Merit Systems Protection Board (MSPB)
at the time of his removal, and an MSPB Administrative Judge upheld the
action in May 1987.
In its final decision dated May 6, 1996, the agency dismissed appellant's
complaint on the grounds that appellant had previously pursued the
matter with the MSPB, and failed to timely contact an EEO Counselor.
The previous decision affirmed the agency's dismissal of appellant's
complaint based upon the latter rationale.
In his request for reconsideration, appellant asserted that he was
not allowed into the facility, and had a severe mental disability.
The agency countered that appellant's request did not meet the criteria
for reconsideration.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of the
criteria of 29 C.F.R. �1614.407(c) is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September
28, 1989).
After a careful review of the previous decision, appellant's request
for reconsideration, the agency's response thereto, and the entire
record, the Commission finds that appellant's request fails to meet
the criteria in 29 C.F.R. �1614.407(c). Specifically, appellant
has presented no evidence to show that the agency's dismissal of his
complaint was improper. EEOC Regulation 29 C.F.R. �1613.214(a)(1)(i),
the regulation in effect at the time of appellant's termination,
provided that complaints of discrimination had to be brought to the
attention of the EEO Counselor within thirty (30) days of the alleged
discriminatory event, the effective date of an alleged discriminatory
personnel action, or the date that the aggrieved person knew or reasonably
should have known of the discriminatory event or personnel action.
Appellant asserted that he was unable to initiate his complaint, because
he could not come into the facility after his removal, and had a severe
mental disability. Nevertheless, the record shows that appellant was
able to timely file an appeal with the MSPB after his termination.<1>
Further, the Commission finds, given the date of appellant's termination,
that he failed to take such steps as would have protected his rights,
and failed to exhibit due diligence or prudent regard for his rights.
See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984)
(per curiam) ("One who fails to act diligently cannot invoke equitable
principles to excuse lack of diligence"); Rys v. USPS, 886 F.2d 443,
446 (1st Cir. 1989) ("to find succor in equity a Title VII plaintiff
must have diligently pursued her claim").
The previous decision declined to address the agency's contention
regarding appellant's appeal to the MSPB. EEOC Regulation 29
C.F.R. �1614.107(d) provides for the dismissal of a complaint, or portion
thereof which raises the same matter as that contained in an appeal to
the MSPB, provided that the complainant has elected to pursue the matter
through non-EEO channels. A review of the record shows that the instant
complaint concerns the same issue, that is, appellant's termination,
as was raised with the MSPB. Therefore, the Commission finds that the
agency's dismissal of appellant's complaint was proper. Accordingly,
based on our review of the record, we find that appellant has failed to
provide evidence which would warrant a reconsideration of the previous
decision.
CONCLUSION
After a review of appellant's request for reconsideration, the agency's
response thereto, the previous decision, 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 therefore the decision of the Commission
to DENY appellant's request. The decision in EEOC Appeal No. 01964202
(February 14, 1997) remains the Commission's final decision. There is
no further right of administrative appeal on a decision of the Commission
on this Request for Reconsideration.
STATEMENT OF RIGHTS - ON RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (S0993)
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. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
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:
NOV 23, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat
1It is noted that, following his request for reconsideration, appellant
submitted a number of medical reports dating from 1985 through April 1996,
to support his claim that he had a mental disability. Appellant's
submissions were made more than 30 days after he filed his request for
reconsideration, and, as such, are untimely. 29 C.F.R. �1614.407(b).
Furthermore, appellant has not shown that the documentation, some of which
was contained in the record on appeal, was unavailable prior to the
issuance of the previous decision.