05a30989
08-15-2003
Gary Schuler, Complainant, v. Tommy G. Thompson, Secretary, Department of Health & Human Services, Agency.
Gary Schuler v. Department of Health & Human Services
05A30989
08-15-03
.
Gary Schuler,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health & Human Services,
Agency.
Request No. 05A30989
Appeal No. 01A32072
Agency Nos. 002-97; 005-98
DECISION ON REQUEST TO RECONSIDER
On June 30, 2003, Gary Schuler (complainant) timely initiated a request
to the Equal Employment Opportunity Commission to reconsider the decision
in Gary Schuler v. Tommy G. Thompson, Secretary, Department of Health &
Human Services, EEOC Appeal No. 01A32072 (June 4, 2003). EEOC regulations
provide that the Commissioners may, in their discretion, reconsider any
previous decision where the party demonstrates that: (1) the previous
decision involved a clearly erroneous interpretation of material fact or
law; or (2) the decision will have a substantial impact on the policies,
practices, or operation of the agency. 29 C.F.R. � 1614.405(b).
Our previous decision dismissed complainant's appeal for untimely filing,
in that, the appeal was filed beyond the 30-day period from his receipt
of the agency's decision. 29 C.F.R. � 1614.403(c). In his request,
complainant asked for reconsideration of his claim based on its merits;
the status of another complaint not pending before us; and appointment
of counsel.<1> His request does not address the dismissal of his appeal
or offer an explanation for its tardiness.
In order to merit the reconsideration of a prior decision, the requesting
party must submit written argument that tends to establish that at least
one of the criteria of 29 C.F.R. � 1614.405(b) is met. The Commission's
scope of review on a request for reconsideration is narrow and is not
merely a form of a second appeal. Lopez v. Department of the Air Force,
EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS,
EEOC Request No. 05900850 (September 7, 1990). The Commission finds that
the complainant's request does not meet the regulatory criteria of 29
C.F.R. � 1614.405(b), in that, the request does not identify a clearly
erroneous interpretation of material fact or law, nor does it show that
the underlying decision will have a substantial impact on the policies,
practices or operation of the agency. Complainant has not provided a
basis to reconsider the previous decision.
CONCLUSION
After a review of the complainant's request for reconsideration, 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(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01A32072 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on a request for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON 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
____08-15-03______________
Date
1Complainant is reminded that he may request appointment of counsel from
the federal court following the filing of a civil action. Appointment of
counsel is not within the Commission's purview and is solely within the
discretion of the federal court judge. See below.