05970844
09-30-1999
Mark F. Riden, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Mark F. Riden, )
Appellant, )
) Request No. 05970844
v. ) Appeal No. 01965680
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On June 23, 1997, Mark F. Riden (hereinafter referred to as appellant)
initiated a request to the Equal Employment Opportunity Commission
(Commission) to reconsider the decision in Mark F. Riden v. John
H. Dalton, Secretary, Department of the Navy, EEOC Appeal No. 01965680
(May 30, 1997). 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, 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 herein is whether the previous decision properly
affirmed the agency's decision to deny appellant's request for an
administrative hearing as being untimely.
BACKGROUND
The record in this case reveals that appellant filed a formal EEO
complaint in August 1995, raising various allegations of sex (male), age
(over 40), disability (unspecified), and reprisal discrimination with
regard to his termination during his probationary period. The agency
accepted the complaint for processing. Following the investigation,
the agency notified appellant and his designated attorney representative
of the right to request either an administrative hearing or a final
agency decision. The notice specifically provided that a request
for a hearing must be made within 30 calendar days of the receipt of
the notice. According to the record, the notice and investigative file
were received at the attorney representative's address of record on May
15, 1996, as evidenced by a postmark on the postal return receipt card.
Nevertheless, the hearing request was not submitted until June 19, 1996.
The agency then issued a decision denying appellant's request for a
hearing on the grounds that it was untimely filed, and forwarding the
matter for a final decision on the merits. The previous decision affirmed
the agency's decision denying appellant's request for a hearing.
In his request for reconsideration, appellant asserted that his request
for a hearing was timely, because he did not receive the notice until
May 20, 1996. Appellant submitted copies of the agency's letter
of acceptance, notice of the right to request a hearing, and letter
acknowledging receipt of the request, all of which were contained in
the record. Appellant also included copies of a receipt for certified
mail and postal return receipt card, showing that his request was
mailed on June 19, 1996, and received by the agency on June 25, 1996.
Appellant acknowledged that the latter information was not submitted
on appeal. Appellant contended that the notice was misleading in that
it stated either he or his representative could request a hearing.
The agency countered that appellant's request did not meet the criteria
for reconsideration. The agency stated that it was justified in relying
upon appellant's designation of the attorney as his representative.
ANALYSIS AND FINDINGS
As discussed above, 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 any of the
criteria of 29 C.F.R. �1614.407(c) is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September
28, 1989).
The Commission initially notes that the EEOC Regulations do not provide
for interlocutory appeals from determinations regarding hearing requests.
Nevertheless, the agency's July 1996 letter advising appellant that his
hearing request was untimely contained appeal rights to the Commission.
The Commission, therefore, will exercise its discretion and rule on
this matter.
After a careful review of the previous decision, appellant's request for
reconsideration, the agency's response thereto, and the entire record,
the Commission finds that appellant's request fails to meet the criteria
in 29 C.F.R. �1614.407(c). Specifically, appellant has presented no
evidence to show that the agency's decision to deny his untimely hearing
request was improper. Further, we find that the information submitted
by appellant does not constitute new and material evidence, in that the
documents were either contained in the record or available at the time
the previous decision was issued.
EEOC Regulation 29 C.F.R. �1614.605(d) provides that, when the complainant
designates an attorney as a representative, service of documents and
decisions shall be made on the attorney and not on the complainant,
and the time frames for receipt of materials by the complainant shall be
computed from the time of receipt by the attorney. As stated, the record
shows that appellant's designated attorney representative received the
investigative file and notice on May 15, 1996. While appellant's attorney
stated on appeal that he was under the impression that he would not be
representing appellant at the time he received the notice, there is no
evidence that the agency was so notified, and, in fact, appellant does not
make such an assertion.<1> Further, appellant's attorney confirmed, by
letter dated July 7, 1996, that he was continuing to represent appellant.
Consequently, based on our review of the record, we find that appellant
has failed to provide evidence which would warrant a reconsideration of
the previous decision.
CONCLUSION
After a review of appellant's request for reconsideration, the agency's
response thereto, the previous decision, and the entire record, the
Commission finds that appellant's request fails to meet the criteria
of 29 C.F.R. �1614.407(c), and it is therefore the decision of the
Commission to DENY appellant's request. The decision in EEOC Appeal
No. 01965680 (May 30, 1997) remains the Commission's final decision.
There is no further right of administrative appeal on a decision of the
Commission on this Request for Reconsideration.
STATEMENT OF RIGHTS - ON RECONSIDERATION
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:
09-30-99
Date Frances M. Hart
Executive Officer
Executive Secretariat1It is noted
that appellant's attorney also stated
that he did not specifically discuss
with appellant whether he desired
continued representation.