05A30283_r
03-01-2004
Nelson Washington, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Nelson Washington v. Department of the Treasury
05A30283
March 1, 2004
.
Nelson Washington,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Request No. 05A30283
Appeal No. 01A24413
Agency No. 02-1213
DECISION ON REQUEST FOR RECONSIDERATION
On December 9, 2002, Department of the Treasury (agency) timely initiated
a request to the Equal Employment Opportunity Commission (the Commission
or EEOC) to reconsider the decision in Nelson Washington v. Department
of the Treasury, EEOC Appeal No. 01A24413 (November 27, 2002). EEOC
regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 29 C.F.R. � 1614.405(b).
The party requesting reconsideration must submit written argument
or evidence which tends to establish one or more of the following
two criteria: the appellate decision involved a clearly erroneous
interpretation of material fact or law; or the decision will have a
substantial impact on the policies, practices or operations of the agency.
Id. For the reasons set forth herein, the agency's request is granted.
Complainant filed his formal EEO complaint alleging discrimination on
the basis of race when he was not selected for an Intelligence Research
Specialist position. The agency dismissed the complaint, finding that
complainant failed to file it in a timely manner. The agency indicated
that complainant received the notice of right to file a formal complaint
(Notice) on May 24, 2002. The agency noted that complainant filed
his formal complaint on June 19, 2002, as evidenced by the postmark on
the envelope. The agency concluded that complainant untimely filed his
formal complaint.
The previous decision found that the agency failed to present evidence
to support its assertion that complainant received the Notice on May 24,
2002. Accordingly, the previous decision reversed the agency's dismissal.
On request for reconsideration, the agency again claims that complainant
received the Notice on May 24, 2002. Therefore, the agency argues,
complainant's June 19, 2002 complaint should be considered untimely.
The agency, for the first time, provides a copy of the dated receipt for
the Notice, showing it was signed for by complainant on May 24, 2002.
Additionally, the agency states that on the formal complaint form,
provided in the initial appeal, complainant explicitly states that he
received the Notice on May 24, 2002.
Upon review of the record, we conclude that the previous decision was
clearly erroneous. The previous decision erred in finding that the
agency failed to support its contention that complainant received the
Notice on May 24, 2002. Although the agency did not provide a copy of
the dated receipt for the Notice in the initial appeal, the record did
contain a copy of the formal complaint on which complainant acknowledges
receipt of the Notice on May 24, 2002. Therefore, for the complaint
to have been timely filed, complainant would have had to file it by
June 10, 2002. See 29 C.F.R. �� 1614.106(b), 1614.604(d). The record
reveals that complainant did not file his complaint until June 19, 2002,
which was beyond the applicable limitations period. Accordingly, the
Commission affirms the agency's dismissal of the complaint pursuant to
29 C.F.R. � 1614.107(a)(2).
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request meets the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to grant the agency's request. The decision
of the Commission in Appeal No. 01A24413 is reversed. The agency's
decision dismissing the complaint is affirmed. There is no further
right of administrative appeal on the decision of the Commission on a
Request to Reconsider.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
March 1, 2004
__________________
Date