05980648
10-08-1998
Mark Kessinger, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Mark Kessinger v. United States Postal Service
05980648
October 8, 1998
Mark Kessinger, )
Appellant, )
) Request No. 05980648
v. ) Appeal No. 01972563
) Agency No. 4-G-770-1169-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On April 4, 1998, Mark Kessinger (appellant) timely initiated a request
to the Equal Employment Opportunity Commission (EEOC) to reconsider the
decision in Kessinger v. USPS, EEOC Appeal No. 01972563 (April 1, 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,
regulation or material fact, or misapplication of established policy,
29 C.F.R. �1614.407(c)(2); and the previous decision is of such
exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). Appellant's request is denied.
The above appeal dealt with appellant's failure to timely file his formal
complaint. The record shows that appellant received the notice of final
interview (NOFI) on March 4, 1996. Appellant was informed of the time
frames for filing his complaint. Appellant filed his complaint in an
envelope that was received by the agency on April 10, 1996, and the
complaint was dated April 9, 1996. Because the postmark on the envelope
was illegible, the agency noted that even if it counted back five days,
the complaint was still untimely filed.<1> The agency dismissed the
complaint for failure to timely file a formal complaint, and appellant
filed an appeal. The previous decision affirmed the agency's dismissal.
In his request for reconsideration, appellant complains that there is
no copy of the envelope with the illegible postmark in the files. The
Commission notes that the records contain a copy of the envelope and
that the date on the complaint was April 9, 1996. Thus, the Commission
agrees with the previous findings that appellant failed to timely file
his formal complaints pursuant to 29 C.F.R. �1614.107(b).
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds appellant's request
does not meet the criteria of 29 C.F.R. �1614.407(c), and it is the
decision of the Commission to deny appellant's request. The decision
of the Commission in Appeal No. 01972563 remains the Commission's final
decision. There is no further right of administrative appeal from the
decision of the Commission on this request for reconsideration.
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:
Oct. 8, 1998
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant filed other complaints in the same envelope, all of which were
also untimely. The facts in this case are nearly identical to those in
Kessinger v. USPS, EEOC Request Nos. 05980620, 05980584, and 05980623
(August 20, 1998).