05970997
06-17-1999
Ray N. Jackson, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Ray N. Jackson v. Department of the Air Force
05970997
June 17, 1999
Ray N. Jackson, )
Appellant, )
)
v. ) Request No. 05970997
) Appeal No. 01966206
F. Whitten Peters, ) Agency No. AL900960605
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On August 15, 1997, Ray N. Jackson (appellant) initiated a request to the
Equal Employment Opportunity Commission (EEOC) to reconsider the decision
in Ray N. Jackson v. Sheila E. Widnall, Secretary, Department of the Air
Force, EEOC Appeal No. 01966206 (June 26, 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 misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the previous 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 affirmed
the agency's dismissal of appellant's complaint.
BACKGROUND
During the period in question, appellant was employed as an Electronics
Mechanic at Sheppard Air Force Base. Appellant contacted an EEO
Counselor on March 13, 1996, and thereafter filed a formal complaint
alleging discrimination based on race. The action challenged by appellant
pertains to his discovery in August 1995 that supervisory experience he
had previously been credited with had been removed from his personnel
data brief (PDB). What appellant challenges is the agency's subsequent
refusal to reinstate this experience in his PDB. The agency thereafter
issued a final decision (FAD) dismissing the complaint for untimely EEO
Counselor contact. Appellant appealed and the prior decision affirmed
the FAD.
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 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). Furthermore, a request to reconsider is not "a form of second
appeal." Regensberg v. United States Postal Service, EEOC Request
No. 05900850 (September 7, 1990); Spence v. Department of the Army,
EEOC Request No. 05880475 (May 31, 1988).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or within 45 days of
the effective date of a personnel action. This period may be extended
when the appellant shows that he was not notified of the time limits
and was not otherwise aware of them; that he did not know and reasonably
should not have known that the discriminatory matter or personnel action
occurred; that despite due diligence he was prevented by circumstances
beyond his control from contacting an EEO Counselor within the time
limits; or for other reasons considered sufficient by the agency or
the Commission. 29 C.F.R. �1614.105(a)(2).
In this case, it is undisputed that appellant initiated EEO counseling
on March 13, 1996. What appellant disputes is the date on which he
was informed that officials were not going to reinstate his supervisory
experience. In this regard, the record contains letters dated November 9
and December 19, 1995, in which appellant was informed by officials that,
based on the information that was currently before them, he could not
be credited with supervisory experience in his PDB. Appellant was also
informed that, if he wanted his PDB changed, he would have to submit
additional information supporting his claim that he had supervisory
experience. Appellant received a third letter dated January 22, 1996,
which reiterated that, unless he submitted updated information, his PDB
was not going to be changed to reflect supervisory experience.
In support of his request to reconsider, appellant argues that the date
on which he was first informed that his PDB would not be revised was
January 22, 1996. The Commission disagrees, however, and finds that
the content of the January 22 letter is essentially the same as that of
the December 19, 1995, letter, i.e., both letters state that, unless
appellant submitted more information, his PDB would not be revised.
Furthermore, even assuming that the date of occurrence was January 22,
1996, appellant's initiation of EEO counseling was March 13, 1996,
which was 51 days later and, as such, beyond the 45-day period.<0>
CONCLUSION
After a review of appellant's request for reconsideration, 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).
Therefore, it is the decision of the Commission to DENY appellant's
request. The decision in EEOC Appeal No. 01966206 (June 26, 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.
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:
June 17, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
01 Appellant appears to believe that, because he filed a grievance on
February 1, 1996, the time limit for initiating EEO counseling was tolled.
As we have previously held, however, filing a grievance does not toll the
time limit for contacting an EEO Counselor. See Schermerhorn v. U.S.
Postal Service, EEOC Request No. 05940729 (February 10, 1995).