05990245
03-18-1999
Alvin L. Burgess, Appellant, William J. Henderson, Postmaster General, United States Postal Service, Agency.
Alvin L. Burgess, )
Appellant, )
) Request No. 05990245 v. ) Appeal No. 01976852
) Agency No. 1A-076-1015-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DENIAL OF REQUEST TO RECONSIDER
On December 17, 1998, the appellant, by and through his attorney,
timely initiated a request to the Equal Employment Opportunity Commission
(Commission) to reconsider the decision in Burgess v. United States Postal
Service, EEOC Appeal No. 01976852 (November 17, 1998). EEOC regulations
provide that the Commission may, in its discretion, reconsider any
previous decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence that 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 decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3).
After a review of the appellant's request for reconsideration, the
agency's response thereto, previous decision, and the entire record, the
Commission finds that the appellant's request fails to meet the criteria
of 29 C.F.R. �1614.407(c), and it is the decision of the Commission to
deny the appellant's request. The decision in EEOC Appeal No. 01976852
remains the Commission's final decision.<1>
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:
March 18, 1999
Date
Frances
M.
Hart
Executive Officer
Executive Secretariat1On request,
the agency asked that the Commission
terminate processing of the appellant's
complaint on the grounds that he
had a civil action pending on the
same matter. The appropriate United
States District Court clerk informed
the Commission over the telephone,
however, that the Court has dismissed
the civil action because the appellant
failed in his service to the parties.
As the civil action is no longer
pending, and there is no indication
it was dismissed with prejudice,
the Commission declines to terminate
processing of the appellant's case
on the grounds that he filed a civil
action on the same matter.