05a40475
03-17-2004
Rodney Chavez, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Rodney Chavez c. Dept. of Health and Human Services
05A40475
March 17, 2004
.
Rodney Chavez,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Request No. 05A40475
Appeal No. 01A35366
Agency Nos. IHS-080-99: 030-00
Hearing Nos. 350-A2-8276X; 320-A3-8369X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Rodney
Chavez v. Dept. of Health and Human Services, EEOC Appeal No. 01A35366
(January 13, 2004). EEOC Regulations provide that the Commission may,
in its discretion, 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 for reconsideration 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, January 13, 2004.
Complainant's attorney is presumed to have received the previous decision
no later than Tuesday, January 20, 2004. As evidenced by the facsimile
date on the documents, complainant's attorney filed the request for
reconsideration on February 26, 2004, which was beyond the 30-day limit
set by regulation. Complainant's attorney does not address the issue of
timeliness of the request.
For the foregoing reasons, the Complainant's s request for
reconsideration is denied. The decision in EEOC Appeal No. 01A35366
remains the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
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
March 17, 2004
__________________
Date