05a50345
01-18-2005
Joe L. Jones, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Joe E. Jones v. Dept. of the Army
05A50345
January 18, 2005
.
Joe L. Jones,<1>
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Request No. 05A50345
Appeal No. 01A30864
Agency No. BPDZF00112B0420
DENIAL
The complainant requested reconsideration of the decision in Joe E. Jones
v. Dept. of the Army, EEOC Appeal No. 01A30864 (February 4, 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). Where complainant is represented by an attorney, the 30-day
time period shall be calculated from the date the attorney received
the document. 29 C.F. R. � 1614.402(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, February 4, 2004. Complainant and
his attorney are presumed to have received the previous decision no
later than February 9, 2004. Thirty days from that date is March 11,
2004. As evidenced by the postage meter date, Complainant mailed his
request on November, 24, 2004, which was beyond the 30-day limit set
by regulation. Complainant, without providing any particulars, says he
was out of town and did not receive his copy of the previous decision
until the �90 days� for filing for reconsideration was over. Complainant
then contacted his attorney and asserts the attorney did not receive a
copy of the decision. Even using complainant's scenario, he would have
contacted his attorney in May 2004, in which case he has provided no
reason for not filing his request for an additional six months although
he could have provided his attorney with a copy of the decision at that
time. The Commission notes that complainant did not provide a statement
from the attorney. The Commission finds such a reason does not justify
an extension of the time limits to file a request.
For the foregoing reasons, the Complainant's request is denied. The
decision in EEOC Appeal No. 01A30864 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
January 18, 2005
__________________
Date
1The previous decision identified complainant as Joe E. Jones based
on the appeal submitted by his attorney and the name used in the final
agency decision. However the record indicates that the correct name is
Joe L. Jones.