05a00066
03-30-2000
Ollie M. Darby, Complainant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Ollie M. Darby v. Department of Energy
05A00066
March 30, 2000
Ollie M. Darby, )
Complainant, )
) Request No. 05A00066
v. ) Appeal No. 01985547
) Agency Nos. 98(077)OH; 98(078)OH;
) 98(079)OH; 98(080)OH;
) 98(081)OH
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
____________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On October 17, 1999, Ollie M. Darby (complainant) initiated a request to
the Equal Employment Opportunity Commission (Commission) to reconsider
the decision in Ollie M. Darby v. United States Department of Energy,
EEOC Appeal No. 01985547 (September 14, 1999).<1> The United States
Department of Energy (agency) initiated an untimely cross request for
reconsideration on October 29, 1999, in an effort to have the Commission
review the same decision. EEOC Regulations provide that the Commissioners
may, in their 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,
37,654 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.405(b)). For the reasons set forth herein, both the agency's and
the complainant's requests for reconsideration are denied.
ISSUE PRESENTED
The issue presented herein is whether the previous decision properly
affirmed the agency dismissal of complaints 98(077)OH, 98(078)OH and
98(079)OH for untimely filing and properly reversed the agency finding
that complaints 98(080)OH and 98(081)OH were untimely filed.
BACKGROUND
On June 5, 1998, the agency issued a final decision dismissing the
following five complaints: 98(077)OH; 98(078)OH; 98(079)OH; 98(080)OH;
and 98(081)OH, on the ground that complainant failed to file the formal
complaints within the fifteen-day limitation period. The agency found
that complainant received the right to file a formal complaint on
March 26, 1998 in all five complaints and complainant filed the formal
complaints on April 13, 1998. Thus, more than fifteen days elapsed after
she received the right to file a formal complaint.
In the previous decision, the Commission found that complainant in fact
filed all five complaints on April 13, 1998. However, the record also
disclosed that the agency failed to submit proof that the complainant
did in fact receive the notice to file a formal complaint in cases
98(080)OH and 98(081)OH. Therefore, the previous decision reversed the
agency findings that with regard to these cases that the complaints were
untimely filed. The Commission, in the previous decision, did affirm
the agency's finding with respect to cases 98(077)OH, 98(078)OH and
98(079)OH, that the complaints were untimely filed.
October 17, 1999, complainant submitted a request for reconsideration.
However, the request supplied the Commission with no evidence
demonstrating that the previous decision involved a clearly erroneous
interpretation of material fact or law, or that the previous decision will
have a substantial impact on the policies, practices or operations of
the agency. Rather, complainant submitted a thirty-one-page facsimile
document raising the same arguments that he raised before the Commission
on appeal.<2>
October 29, 1999, the agency, also submitted a request for
reconsideration, which the Commission will treat as a cross request
for reconsideration.
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. � 1614.405 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).
In the present case, complaints 98(077)OH, 98(078)OH and 98(079)OH were
dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
at and hereinafter referred to as 29 C.F.R. � 1614.106 (b), for failure
to file the formal complaint within fifteen days after receiving the
notice to file a formal complaint. On request, as well as on appeal,
complainant has argued that she had been misled by the agency causing
her to file the complaints in an untimely fashion. However, the record
is void of any evidence to support a finding that the agency in any
way misled the complainant. In fact, the record clearly demonstrates
that complainant received the notice to file a formal complaint on
March 26, 1998 with respect to the above cases Id., and she filed a
formal complainant eighteen days later on April 13, 1998. Therefore,
the Commission finds no reason to disturb the previous decision.
After a review of complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
complainant's request does not meet the criteria of 29 C.F.R. � 1614.405.
Specifically, the complainant has presented no evidence to demonstrate
that the previous decision, affirming the dismissal of cases 98(077)OH,
98(078)OH and 98(079)OH was improper.
The agency on October 29, 1999 also submitted a request for
reconsideration with respect to case 98(081)OH. The Commission treats
this request as a cross request for reconsideration. Upon review of
the record, the Commission finds that the agency's request was untimely
submitted. Volume 64 Fed. Reg. 37,644, 37,659 (1999) ( to be codified at
and hereinafter referred to as 29 C.F.R. � 1614.402(a)), in pertinent
part, provides that appeals must be submitted within thirty days of
receipt of the decision. Here, the record reflects, that the agency
received the previous decision on September 16, 1999, and thereafter,
filed the request for reconsideration on October 29, 1999, clearly
in excess of the thirty days allotted under 29 C.F.R. � 1614.402.
Furthermore, on request, the agency has failed to provide any evidence
to warrant an extension or waiver of the thirty day limitations period
pursuant to 64 Fed. Reg. 37, 644, 37,661 (1999) ( to be codified at and
hereinafter referred to as 29 C.F.R. � 1614.604). Accordingly, it is
the decision of the Commission to deny the agency's cross request for
reconsideration because it was untimely submitted.
CONCLUSION
After a review of complainant's request for reconsideration and the
agency's cross request for reconsideration, the previous decision, and the
entire record, the Commission finds complainant's request does not meet
the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the
Commission to deny complainant's request. Furthermore, the agency's cross
request is untimely and will not be considered. Therefore, the decision
of the Commission in EEOC Appeal No. 01985547 remains the Commission's
final decision. There is no further right of administrative appeal from
a decision of the Commission on a request for reconsideration.
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 Equal Employment Assistant
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.
2Pursuant to Volume 64 Fed. Reg. 37,644, 37,659 (1999) ( to be codified
at and hereinafter referred to as 29 C.F.R. � 1614.403(d)), either
party may submit a request for reconsideration by facsimile if the
document is ten pages or less. In this case, complainant has submitted
a thirty-one page document thus violating 29 C.F. R. � 1614.403(d).
On this ground, the Commission denies complainant's request. However,
the Commission exercises its discretion on its own motion to reconsider
the previous decision.