05990632
03-30-2000
James Mercado, Complainant, v. William S. Cohen, Secretary, Department of Defense, (National Imagery and Mapping Agency), Agency.
James Mercado v. Department of Defense
05990632
March 30, 2000
James Mercado, )
Complainant, ) Request No. 05990632
) Appeal No. 01962733
v. ) Agency No. HR 95-02
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(National Imagery and Mapping Agency), )
Agency. )
_______________________________________)
DENYING REQUEST FOR RECONSIDERATION
On April 19, 1999, James Mercado initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in James
Mercado v. Department of Defense, EEOC Appeal No. 01962733 (March
10, 1998).<1> EEOC Regulations provide that the Commission may, in
its discretion, 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 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.405(b)). The request must be made within thirty days of receipt of
the prior decision. Id. On May 21, 1999, the agency filed a response
arguing that the Commission should dismiss complainant's request as
untimely filed and as having been the basis of a civil action decided
by a United States District Court.
After receipt of the Commission's prior decision, complainant filed suit
in the United States District Court for the Eastern District of Virginia
(Civil Action No. 98-521-A). On August 7, 1998, the District Court
granted the agency's motion to dismiss the suit for failure to state
a claim on which relief could be granted. However, the District Court
granted complainant the opportunity to amend his suit on or before August
14, 1998. Complainant failed to do so and the District Court's dismissal
became effective as of August 7, 1998. Complainant appealed the Court's
decision to the United States Court of Appeals for the Fourth Circuit,
which ultimately dismissed the appeal. The record further reflects
that although complainant was permitted to proceed in forma pauperis,
his requests for court appointed counsel were denied.
Complainant acknowledges that his instant request was filed beyond the
applicable time period. However, complainant argues that the request
should be granted on the basis that the dismissal of his civil suit and
the denial of his requests for court appointed counsel excuse the delay
in filing the instant request.
After a careful review of the record, the Commission finds that
complainant has not offered adequate justification for an extension of
the applicable time limit for filing his request for reconsideration.
Therefore, it is the decision of the Commission to DISMISS the Request to
Reconsider, both as concerning a complaint that was the basis of a civil
action decided by a United States District Court and as being untimely
filed inasmuch as the unsuccessful pursuit of a civil action does not
constitute extenuating circumstances which prevent the timely filing of
the request. 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and at
29 C.F.R. � 1614.107(a)(3)); 29 C.F.R. � 1614.405(b).
Accordingly, the Commission's decision in James Mercado v. Department
of Defense, EEOC Appeal No. 01962733 (March 10, 1998) remains the
Commission's final decision. There is no further right of administrative
appeal from a decision of the Commission on this request to reconsider.
Complainant is advised that while complainants generally have the right
to file a civil action following the issuance of a Commission decision
on a request to reconsider, as set forth below, such a right may not be
available to complainant under the circumstances of this matter.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)
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:
March 30, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.