0520110037
12-10-2010
David J. Swanson, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
David J. Swanson,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520110037
Appeal No. 0120101729
Agency No. DON 07-66001-00243
DENIAL
Complainant requested reconsideration of the decision in David J. Swanson
v. Department of the Navy, EEOC Appeal No. 0120101729 (August 24, 2010).
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(b).
BACKGROUND
In the previous decision, the Commission found that the Agency did not
coerce Complainant to enter into a settlement agreement because the Agency
did not issue an improper threat to Complainant when, during settlement
talks, it discussed the consequences of his alleged lengthy history of
AWOL and failure to follow leave procedures. The Commission also found
in the previous decision that the Agency complied with the terms of the
settlement agreement.
In his request to reconsider, Complainant maintains that he was coerced
into accepting the settlement agreement. He disputes the previous
decision's characterization of what went on at the meeting. According to
Complainant, the Agency informed him during the settlement meeting that
it was considering proposing his removal, but it did not mention that the
basis for removal was due to AWOL and failure to follow leave procedures.
To show that AWOL could not have been mentioned as a basis for removal
at the settlement meeting, Complainant includes earnings and leave
statements during that time period showing he had no AWOL hours.
ANALYSIS AND FINDINGS
Initially, the Commission notes that a party must file a request to
reconsider a previous decision within thirty calendar days after the party
receives the previous decision. 29 C.F.R. � 1614.405(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).
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 calendar days of the date on
which it was mailed, August 24, 2010. Therefore, Complainant is presumed
to have received the previous decision no later than August 29, 2010.
Thirty days from that date is September 28, 2010. As evidenced by the
postmark date, Complainant mailed the request on October 4, 2010, which
was beyond the 30-day limit set by regulation.
As justification for the late request submission, Complainant states in
the first page of his request for reconsideration that he did not actually
receive the previous decision until September 5, 2010, a Sunday. The
Commission finds that Complainant did not provide sufficient justification
for late submission. Complainant did not explain what caused the long
delay in receiving the decision or why he received the decision on a
Sunday, a day when the Postal Service does not usually deliver mail.
We find that Complainant's statement in his request, by itself, does
not constitute sufficient evidence to rebut the presumption that he
received the previous decision on or before August 29, 2010. Therefore,
we find the request to be untimely filed and deny Complainant's request
for reconsideration. The decision in EEOC Appeal No. 0120101729 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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
___12/10/10_______________
Date
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0520110037
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520110037