05990626
05-18-2000
Robert R. Mejia, Complainant, v. Rubin E. Rubin, Secretary, Department of the Treasury, Agency.
Robert R. Mejia v. Department of the Treasury
05990626
May 18, 2000
Robert R. Mejia, )
Complainant, )
)
v. ) Request No. 05990626
) Appeal No. 01983497
Rubin E. Rubin, ) Agency No. 98408-M
Secretary, )
Department of the Treasury, )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
Robert R. Mejia (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Robert R. Mejia v. Department of the Treasury, EEOC
Appeal No. 01983497 (March 16, 1999). EEOC regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
at and hereinafter referred to as 29 C.F.R. �1614.405(b)).<1> The
party requesting reconsideration must submit written argument or evidence
which tends to establish one of the following two criteria: either that
the appellate decision involved a clearly erroneous interpretation of
material fact or law, 29 C.F.R. �1614.405(b)(1); or that the decision
will have a substantial impact on the policies, practices, or operations
of the agency, 29 C.F.R. �1614.405(b)(2). For the reasons which follow,
complainant's request is DENIED.
On January 30, 1998, complainant, a former Revenue Officer, GS-1169-11,
filed a formal EEO complaint alleging that the agency discriminated
against him on various bases when it treated him unfairly during the
period May 1992 through June 1997, culminating in his retirement.
Complainant had initially contacted an EEO Counselor on January 7,
1998. During counseling, he informed the EEO Counselor that he had
not suspected discrimination until December 5, 1997, when he met with
a bankruptcy attorney.
After the formal complaint was filed, the agency requested complainant
to provide additional information regarding why he had not contacted an
EEO Counselor sooner. Complainant's attorney replied:
[Complainant] did not contact the EEOC (sic) within 45 days of his
retirement due to medical reasons and or (sic) disability. [Complainant]
went into a deep depression immediately after his retirement. He was
therefore unable to handle this matter until recently.
By final agency decision (FAD) dated March 19, 1998, the agency dismissed
the complaint for untimely EEO Counselor contact. The agency noted that
in order to excuse untimeliness, a complainant must have been totally
incapacitated. The agency further noted that complainant had suspected
discrimination long before even his retirement, as evidenced by a December
2, 1996, letter to his Division Chief in which he expressed his concern
that his supervisor had been failing to provide him with reasonable
accommodation. On appeal, complainant offered neither argument nor
evidence in support of his position. The previous decision affirmed
the FAD.
In his request for reconsideration, complainant presents two medical
reports which he argues support his position that he was unable to
contact an EEO Counselor in a timely fashion. It is noted that both of
these reports, one dated January 13, 1998, and the other dated February
13, 1999, were extant while the appeal was pending, but neither was
submitted to the Commission for consideration. In any event, neither
report addresses complainant's status in December 1996, when he first
expressed suspicions of discrimination; nor in June 1997, when he
retired; nor in January 1998, when he finally contacted an EEO Counselor.
Further, as the agency noted on appeal, complainant met with a bankruptcy
attorney on December 5, 1997, evidence that even if he had been totally
incapacitated in the past, he was at that time capable of managing his
affairs, yet still waited another 56 days to contact an EEO Counselor.
The Commission therefore finds complainant's argument to be without merit.
Complainant's request meets neither of the criteria for reconsideration,
and hereby is DENIED. The decision in Appeal No. 01983497 remains the
final decision of the Commission in this case. There is no further
right of administrative appeal from this decision.
STATEMENT OF RIGHTS
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
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:
May 18, 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 Opportunity Specialist
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.