05980602
11-20-1998
Graciano Velez, Appellant, v. Donna A. Tanoue, Chairperson, Federal Deposit Insurance Corporation, Agency.
Graciano Velez v. Federal Deposit Insurance Corporation
05980602
November 20, 1998
Graciano Velez, )
Appellant, ) Request No. 05980602
) Appeal No. 01974918
v. ) Agency No. 9662P
)
Donna A. Tanoue, )
Chairperson, )
Federal Deposit Insurance )
Corporation, )
Agency. )
________________________________)
DENIAL OF RECONSIDERATION
INTRODUCTION
On April 9, 1998, Graciano Velez (hereinafter referred to as appellant)
timely initiated a request to the Equal Employment Opportunity Commission
(the Commission) to reconsider the decision in Velez v. FDIC, EEOC
Appeal No. 01974918 (March 12, 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 or regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the 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.
ISSUE PRESENTED
The issue presented is whether the previous decision
properly dismissed appellant's appeal for untimely filing.
BACKGROUND
Appellant--a Senior Financial Analyst serving under a temporary
appointment--contacted the EEO Office regarding his allegations
of discrimination on June 30, 1996. Thereafter, he filed an EEO
complaint alleging national origin (Hispanic from Puerto Rico), age
(45), sex (male), and reprisal (previously requested an EEO counselor)
discrimination with respect to 95 nonselections from 1991 through
June 1996.
In its final decision (FAD), the agency dismissed appellant's allegation
of nonselection for 85 positions from 1991-1995.<1> The FAD found
that appellant could not establish a continuing violation because the
nonselections involved different types of positions in different agency
organizational components, different qualifications, and different
selecting officials. The agency also found that appellant had some
reason to suspect the discrimination as early as 1991 because he averred
that the agency exhibited a pattern and practice of discrimination that
"'started years ago.'" Appellant appealed from the FAD.
Upon review, the previous decision dismissed the appeal for untimely
filing. The previous decision found that appellant had received the FAD
on April 25, 1997<2> but had not filed his appeal until June 7, 1997.
In his reconsideration request, appellant asserts that "his intention
to appeal and the reasons for the delay were provided to the agency and
the Commission by letter dated April 28, 1997."
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence which tends to establish that at least one of the criteria
of 29 C.F.R. �1614.407(c) is met. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
A copy of the April 28, 1997 letter to which appellant refers is contained
in the agency's file. The letter bears the addresses of the agency's
Office of Diversity and Economic Opportunity and the Commission's Office
of Federal Operations (OFO). Above each address is a line stating
"Via Fax to" with the respective fax numbers of the agency and OFO.
The letter itself is addressed to the agency's Manager of the above
office. Therein, appellant states that he has decided to appeal the
partial dismissal of his complaint; he is hereby requesting a hearing
before an EEOC Administrative Judge; he would appreciate an extension
of time to file his appeal; and that he hoped that the agency would show
its good faith by adhering to his request.
In its appeal brief, the agency stated that it received the April 28,
1997 letter via first class mail on May 15, 1997. A copy of the letter
and the envelope in which it was mailed both are included in the record
and are date stamped as received on May 15, 1997. The record contains
no evidence to show that the agency ever received a copy of the letter
via fax.<3>
The record likewise contains no evidence to show that the Commission
ever received a copy of the April 28, 1997 letter either by fax or by
first class mail. In this regard, the Commission notes that appellant's
practice appears to be that he sends documents in duplicate--once by
fax and once via first class mail.
That is, the record contains two copies of appellant's June 7, 1997
appeal--one sent via fax and the other sent via first class mail as well
as two copies of his reconsideration request--one sent via fax and the
other sent via first class mail. Based on these facts, the Commission
finds it more likely than not that appellant never sent the April 28,
1997 letter to OFO.
Because appellant's request fails to meet the criteria for
reconsideration, the Commission denies the request.
CONCLUSION
After a review of appellant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
appellant's request for reconsideration fails to meet the criteria of
29 C.F.R. �1614.407(c), and the request hereby is DENIED. The decision
in EEOC Appeal No. 01974918 hereby is AFFIRMED.
STATEMENT OF APPELLANT'S RIGHTS
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
1The agency accepted appellant's allegation that he had not been selected
for 10 positions and that he became aware of these nonselections between
June 18 and June 28, 1996.
2Appellant indicated that the FAD was received at his residence earlier
than April 25, 1997, but that he personally did not receive it until that
date. Because the agency did not provide a postal return receipt card,
the previous decision used April 25, 1997 as the date of receipt.
3The record contains copies of faxes that appellant sent to the agency
in 1996.