Graciano Velez, Appellant,v.Donna A. Tanoue, Chairperson, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity CommissionNov 20, 1998
05980602 (E.E.O.C. Nov. 20, 1998)

05980602

11-20-1998

Graciano Velez, Appellant, v. Donna A. Tanoue, Chairperson, Federal Deposit Insurance Corporation, Agency.


Graciano Velez v. Federal Deposit Insurance Corporation

05980602

November 20, 1998

Graciano Velez, )

Appellant, ) Request No. 05980602

) Appeal No. 01974918

v. ) Agency No. 9662P

)

Donna A. Tanoue, )

Chairperson, )

Federal Deposit Insurance )

Corporation, )

Agency. )

________________________________)

DENIAL OF RECONSIDERATION

INTRODUCTION

On April 9, 1998, Graciano Velez (hereinafter referred to as appellant)

timely initiated a request to the Equal Employment Opportunity Commission

(the Commission) to reconsider the decision in Velez v. FDIC, EEOC

Appeal No. 01974918 (March 12, 1998). 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 or 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 is whether the previous decision

properly dismissed appellant's appeal for untimely filing.

BACKGROUND

Appellant--a Senior Financial Analyst serving under a temporary

appointment--contacted the EEO Office regarding his allegations

of discrimination on June 30, 1996. Thereafter, he filed an EEO

complaint alleging national origin (Hispanic from Puerto Rico), age

(45), sex (male), and reprisal (previously requested an EEO counselor)

discrimination with respect to 95 nonselections from 1991 through

June 1996.

In its final decision (FAD), the agency dismissed appellant's allegation

of nonselection for 85 positions from 1991-1995.<1> The FAD found

that appellant could not establish a continuing violation because the

nonselections involved different types of positions in different agency

organizational components, different qualifications, and different

selecting officials. The agency also found that appellant had some

reason to suspect the discrimination as early as 1991 because he averred

that the agency exhibited a pattern and practice of discrimination that

"'started years ago.'" Appellant appealed from the FAD.

Upon review, the previous decision dismissed the appeal for untimely

filing. The previous decision found that appellant had received the FAD

on April 25, 1997<2> but had not filed his appeal until June 7, 1997.

In his reconsideration request, appellant asserts that "his intention

to appeal and the reasons for the delay were provided to the agency and

the Commission by letter dated April 28, 1997."

ANALYSIS AND FINDINGS

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 at least one of the criteria

of 29 C.F.R. �1614.407(c) is met. For a decision to be reconsidered,

the request must contain specific information that meets the criteria

referenced above.

A copy of the April 28, 1997 letter to which appellant refers is contained

in the agency's file. The letter bears the addresses of the agency's

Office of Diversity and Economic Opportunity and the Commission's Office

of Federal Operations (OFO). Above each address is a line stating

"Via Fax to" with the respective fax numbers of the agency and OFO.

The letter itself is addressed to the agency's Manager of the above

office. Therein, appellant states that he has decided to appeal the

partial dismissal of his complaint; he is hereby requesting a hearing

before an EEOC Administrative Judge; he would appreciate an extension

of time to file his appeal; and that he hoped that the agency would show

its good faith by adhering to his request.

In its appeal brief, the agency stated that it received the April 28,

1997 letter via first class mail on May 15, 1997. A copy of the letter

and the envelope in which it was mailed both are included in the record

and are date stamped as received on May 15, 1997. The record contains

no evidence to show that the agency ever received a copy of the letter

via fax.<3>

The record likewise contains no evidence to show that the Commission

ever received a copy of the April 28, 1997 letter either by fax or by

first class mail. In this regard, the Commission notes that appellant's

practice appears to be that he sends documents in duplicate--once by

fax and once via first class mail.

That is, the record contains two copies of appellant's June 7, 1997

appeal--one sent via fax and the other sent via first class mail as well

as two copies of his reconsideration request--one sent via fax and the

other sent via first class mail. Based on these facts, the Commission

finds it more likely than not that appellant never sent the April 28,

1997 letter to OFO.

Because appellant's request fails to meet the criteria for

reconsideration, the Commission denies the request.

CONCLUSION

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

previous decision, and the entire record, the Commission finds that

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

29 C.F.R. �1614.407(c), and the request hereby is DENIED. The decision

in EEOC Appeal No. 01974918 hereby is AFFIRMED.

STATEMENT OF APPELLANT'S RIGHTS

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:

Nov. 20, 1998

Date Frances M. Hart

Executive Officer

1The agency accepted appellant's allegation that he had not been selected

for 10 positions and that he became aware of these nonselections between

June 18 and June 28, 1996.

2Appellant indicated that the FAD was received at his residence earlier

than April 25, 1997, but that he personally did not receive it until that

date. Because the agency did not provide a postal return receipt card,

the previous decision used April 25, 1997 as the date of receipt.

3The record contains copies of faxes that appellant sent to the agency

in 1996.