05970443
02-11-1999
Phillip L. Cochran, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Phillip L. Cochran v. Department of Justice
05970443
February 11, 1999
Phillip L. Cochran, )
Appellant, )
)
v. ) Request No. 05970443
) Appeal No. 01963437
Janet Reno, ) Agency No. 956423
Attorney General, )
Department of Justice, )
Agency. )
)
DENIAL OF RECONSIDERATION
On January 28, 1997, the Department of Justice (hereinafter referred to
as the agency), initiated a request to the Equal Employment Opportunity
Commission (the Commission) to reconsider the decision in Phillip
L. Cochran v. Janet Reno, Attorney General, Department of Justice, EEOC
Appeal No. 01963437 (November 27, 1996) received by the agency on December
4, 1996. EEOC Regulations provide that the Commissioners may, in their
discretion, reconsider any previous decision. 29 C.F.R. �1614.407(a).
A request for reconsideration must be filed within 30 days of receipt of
the previous appellate decision. 29 C.F.R. �1614.407(b). A request is
timely filed if delivered in person or postmarked before the expiration
of the applicable filing period. 29 C.F.R. �1614.604(b).
A certified mail return receipt in the record indicates that the previous
decision was signed for on behalf of the agency on December 4, 1996.
The previous decision included a statement of rights apprising the agency
of the time limit to initiate a request for reconsideration and the
necessity for providing written justification of extenuating circumstances
for untimely filings. However, the agency's reconsideration request was
dated January 28, 1997 and was received by the Commission on February
5, 1997<1>, 55 and 63 days, respectively, after the agency's receipt
of the previous appellate decision. The agency provides no explanation
for the untimely filing, except to note that it has been conducting the
supplemental investigation ordered by the previous decision during that
time period.
Based on the foregoing, the Commission finds that the agency's request
for reconsideration is untimely and is DENIED. The Commission's decision
in EEOC Appeal No. 01963437 (November 27, 1996), remains the Commission's
final decision in this matter. Based on the agency's indication that it
has conducted the supplemental investigation ordered by the previous
decision, that decision's order is modified to direct the agency to,
if it has not already done so, issue a final agency decision (FAD)
within 10 days of its receipt of this decision. The agency is directed
to comply with the order of the previous decision as modified and set
forth below. There is no further right of administrative appeal from a
decision of the Commission on this request for reconsideration.
ORDER (E1092)
Within 10 days of the agency's receipt of this decision, if it has not
already done so, the agency is ORDERED to complete its supplemental
investigation into:
1. Whether appellant had actual or constructive notice of the time
limits for contacting an EEO Counselor; and
2. Whether appellant was misled about his EEO rights.
During this time period, the agency shall also determine whether appellant
timely contacted an EEO Counselor and either issue a letter to appellant
accepting the complaint for investigation or issue a new FAD dismissing
the complaint. A copy of the letter to appellant accepting the complaint
for investigation or a copy of the new FAD must be sent to the Compliance
Officer referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such 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. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
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
Feb 11, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 The postmarked envelope is not contained in the record.