0520170222
05-18-2017
Augustine P.,1 Complainant, v. Penny Pritzker, Secretary, Department of Commerce, Agency.
.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Augustine P.,1
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce,
Agency.
Request No. 0520170222
Appeal No. 0120161215
Agency No. 63201500122
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120161215 (January 25, 2017). EEOC regulations provide that the Commission may, in its discretion, grant a request to 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(c).
Complainant filed an EEO complaint alleging that he was discriminated against based on his age, sex, and reprisal when: (1) the Agency denied his request to re-classify his position; (2) the Agency denied his request that a desk audit of his position be performed; and (3) he has been subjected to discrimination in violation of the Equal Pay Act, Title VII of the Civil Rights Act, and the Age Discrimination in Employment Act because he performs the same duties and holds the same responsibilities as younger and/or female coworkers who are compensated at higher grades.
The Agency issued a decision on February 2, 2016, finding no discrimination. On March 7, 2016, Complainant filed an appeal with the Commission.
The previous decision found that Complainant's appeal was untimely filed and dismissed the appeal. The decision found that the Agency's final decision was received at the address of record for Complainant's attorney on February 3, 2016, but she did not file his appeal until March 7, 2016, beyond the limitation period.
A request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. In the request for reconsideration, Complainant's attorney states that her office had moved, but the Agency sent its decision to her former address, where it was received on February 3, 2016. She indicates that it was later forwarded to her new address. EEOC Regulation 29 C.F.R. � 1614.105(b) provides for an obligation on the part of Complainant and his representative to keep the Agency informed of their current addresses. Complainant's counsel states that the Agency should have known her new address as she had used it in emails as part of her signature block with the Agency concerning another complaint. We find, however, that this was insufficient to constitute the notice of change of address contemplated by our regulation. The Commission has long held that a complainant, or in this case his legal representative, is deemed to have constructively received documents mailed to his or her last known address when the complainant fails to notify the agency of an address change. See Jackson v. Department of the Navy, EEOC Request No. 05890359 (June 9, 1989). Here, we find our previous decision was correct in determining that Complainant's attorney constructively received the Agency final decision on February 3, 2016, and failed to file the notice of appeal within the required 30 days.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120161215 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 18, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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