Leopold E. Wetula, Complainant,v.Ray H. LaHood, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMay 24, 2012
0520120165 (E.E.O.C. May. 24, 2012)

0520120165

05-24-2012

Leopold E. Wetula, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.


Leopold E. Wetula,

Complainant,

v.

Ray H. LaHood,

Secretary,

Department of Transportation,

Agency.

Request No. 0520120165

Appeal No. 0120112905

Agency No. 2009-22612-RITA

DENIAL

Complainant timely requested reconsideration of the decision in Leopold E. Wetula v. Department of Transportation, EEOC Appeal No. 0120112905 (November 2, 2011). 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).

Our previous decision dismissed Complainant's appeal as untimely filed. The record reflects that Complainant filed his appeal with the Agency, not the Commission, despite having repeatedly been advised in writing of the proper procedure for filing an appeal. Complainant maintained that he had been advised by an unidentified employee of the Agency that he could file his appeal with the Agency's Office of Civil rights; by the time Complainant filed his appeal with the Commission, the deadline for timely filing had passed. The previous decision cited Commission precedent holding that when an individual has been provided with the proper address to file a document, filing at the wrong address does not constitute proper filing.

On request for reconsideration, Complainant reiterates the arguments raised and found unpersuasive on appeal. We remind Complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency.

We note that Complainant was repeatedly advised, in writing, of the proper venue to file his appeal, i.e., the Commission's Office of Federal Operations. Further, the last such advisory came in the form of an e-mail directed personally to Complainant from the Agency official who signed the Agency's final action, again specifically stating that Complainant's appeal should be filed with the Office of Federal Operations. It defies reason that, having been repeatedly advised of the proper venue to file an appeal, Complainant would rely on an unidentified Agency employee's assertion that he could file his appeal with the Agency's Office of Civil Rights.

After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria 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. 0120112905 remains the Commission's 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 (P0610)

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 (Z0610)

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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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

May 24, 2012

Date

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0520120165

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0520120165