05980970
08-12-1999
Rodney B. Schwartz,) Appellant,) v.) Janice R. Lachance,) Director,) Office of Personnel Management,) Agency.)
Rodney B. Schwartz,)
Appellant,)
)
v.) Request No. 05980970
) Appeal No. 01976041
Janice R. Lachance,) Agency No. 97-14
Director,)
Office of Personnel Management,)
Agency.)
)
DENIAL OF REQUEST FOR RECONSIDERATION
On July 17, 1998, Rodney B. Schwartz (appellant) timely initiated
a request to the Equal Employment Opportunity Commission (EEOC
or Commission) to reconsider the decision in Rodney B. Schwartz
v. Office of Personnel Management, EEOC Appeal No. 01976041 (May
29, 1998), received June 20, 1998, as evidenced by certified-mail
return receipt. 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); or the
previous decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3).
Appellant filed a formal EEO complaint dated February 26, 1997, in
which he alleged that the agency discriminated against him, inter alia,
when he was removed from employment effective August 2, 1996.<1> By
final agency decision (FAD) dated July 1, 1998, the agency dismissed
the complaint for untimely EEO Counselor contact, noting that appellant
did not initiate contact with an EEO Counselor until September 23, 1996,
seven days past the 45-day regulatory deadline for doing so pursuant to
29 C.F.R. �1614.105(a). The previous decision affirmed the FAD.
In his request for reconsideration, appellant reiterates his argument,
rejected below, that he visited the agency's EEO Office several
times during the 45-day period following his removal, but that on most
occasions the office was locked, except for one occasion when the office
was unlocked but no employees were present. Appellant contended that
he finally left a message with the Personnel Office, which resulted in
an EEO Counselor contacting him. The appeal record, however, contains
the affidavit of the individual who was, at the relevant time, Acting
Chief of the EEO Office. The Acting Chief averred that during the time
appellant claimed to have been unable to contact an EEO Counselor,
the EEO Office was kept locked when unattended, but always with a
note posted informing visitors when an EEO Office employee would be
available, directing visitors to the Human Resources (Personnel) Office,
and providing a telephone number where messages could be left. The Acting
Chief further averred that when appellant did contact the EEO Office, he
made no mention of earlier, unsuccessful attempts to do so. Further, the
appeal record contains the report of counseling included with appellant's
request for reconsideration. The report of counseling reflects that
appellant initiated contact with an EEO Counselor on September 23, 1996,
not -- as appellant contends -- that the EEO Counselor initiated contact
with appellant pursuant to a message. Accordingly, the previous decision
correctly affirmed the agency's dismissal of appellant's complaint for
untimely EEO Counselor contact. See 29 C.F.R. �1614.107(b).
Upon review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request does not meet any of the criteria of 29 C.F.R. �1614.407(c).
Accordingly, it is the decision of the Commission to DENY appellant's
request for reconsideration. The decision in Appeal No. 01976041
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:
August 12, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant also alleged discriminatory working conditions prior to
his removal.