05980977
11-20-1998
William Smith, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
William Smith v. United States Postal Service
05980977
November 20, 1998
William Smith, )
Appellant, )
)
v. ) Request No. 05980977
) Appeal No. 01976697
William J. Henderson, ) Agency No. 4-D-230-1040-94
Postmaster General, ) Hearing No. 120-96-5012X
United States Postal Service, )
Agency. )
______________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On July 17, 1998, William Smith (appellant) initiated a request to the
Equal Employment Opportunity Commission (EEOC) to reconsider the decision
in Smith v. USPS, EEOC Appeal No. 01976697 (June 12, 1998). Appellant
received the previous decision on June 18, 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).
For the reasons set forth herein, appellant's request is denied.
The record indicates that appellant received the final agency decision
(FAD) on June 10, 1997. The FAD provided appellant with the correct
address of the Commission and the appropriate time frame for filing
an appeal. Appellant's appeal was postmarked September 3, 1997. The
previous decision found that appellant's appeal was untimely filed with
the Commission and that appellant failed to submit justification to
invoke waiver or equitable tolling. Appellant's appeal was dismissed. 29
C.F.R. �1614.405(c).
In his request for reconsideration, appellant states that the delay
was because his representative was out of town on leave. Under the
Commission's regulations, a complainant is at all time responsible
for proceeding with a complaint whether or not he has designated a
representative. 29 C.F.R. �1614.605(e). Appellant has failed to submit
sufficient justification for extending the time limits.
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. 01976697 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:
Nov. 20, 1998
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat