0520120352
12-21-2012
Willie F. Robinson, Complainant, v. Hilda L. Solis, Secretary, Department of Labor (Occupational Safety & Health Administration), Agency.
Willie F. Robinson,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor
(Occupational Safety & Health Administration),
Agency.
Request No. 0520120352
Appeal No. 0120082974
Agency No. CRC 05-11-111
DENIAL
Complainant timely requested reconsideration of the decision in Willie F. Robinson v. Department of Labor, EEOC Appeal No. 0120082974 (Mar. 1, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to 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 29 C.F.R. � 1614.405(b).
Our previous decision dismissed Complainant's appeal as untimely filed. The decision noted that Complainant received the final agency decision (FAD) on April 28, 2008, and filed his appeal on June 24, 2008, which was beyond the 30-day time limit set forth in 29 C.F.R. � 1614.402. The previous decision also noted that the FAD properly advised Complainant and his designated representative1 that Complainant had 30 days after receipt of the decision to file his appeal with this Commission and that Complainant had disregarded the appeal form enclosed with the FAD. On appeal, Complainant stated that he had mistakenly filed a request for a hearing on May 23, 2008, and argued that the Commission has found some appeals in other cases to be timely even though they were filed with the wrong office. Noting that Complainant had filed a request for a hearing rather than an appeal, the Commission concluded that Complainant had not offered adequate justification for an extension of the applicable time limit. Accordingly, the Commission dismissed Complainant's appeal.
In his request for reconsideration, Complainant states that, although the FAD referred to an appeal form, he did not receive the form. Complainant also states that he was left without representation because his prior representative was disbarred effective April 30, 2008. Complainant acknowledges that he mistakenly filed a request for a hearing rather than an appeal but argues that the Supervisory Administrative Judge (AJ) who dismissed the hearing request did not dismiss his case for untimely filing. Finally, noting that the Commission granted his new attorney's request for an extension of time to file a brief in support of his appeal, Complainant argues that extension should be construed as the Commission's acceptance of his appeal as timely filed.
In response, the Agency argues that the alleged failure to attach an appeal form to the FAD is not adequate justification for reconsideration of the Commission's previous decision. Citing prior Commission decisions, the Agency notes that the Commission has held that the failure to provide an appeal form will not toll the filing time if the FAD advised a complainant of his or her appeal rights. The Agency argues that the absence of legal counsel does not excuse Complainant's failure to comply with the time limit and that the Commission's previous decision properly dismissed Complainant's appeal as untimely filed.
We remind Complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here.
Complainant asserts that he did not receive an appeal form but, as the Agency notes, the Commission has held that the failure to enclose an appeal form with the FAD is not adequate justification for an extension of the time limit for filing an appeal. See, e.g., Sutton v. U.S. Postal Serv., EEOOC Appeal No. 0120083017 (Sept. 25, 2008); Klecka v. Dep't of Transp., EEOC Appeal No. 01A55744 (Jan. 27, 2006); Carr v. Dep't of the Treasury, EEOC Appeal No. 01A44673 (Nov. 17, 2004). In this case, the FAD notified Complainant that he had thirty days to appeal the FAD and provided Complainant with the proper address for filing the appeal. Complainant did not file a timely appeal but, instead, submitted a "Hearing Request Form" asking the Commission's Washington Field Office to appoint an Administrative Judge. Complainant was notified of the proper avenue for pursuing an appeal, and his lack of legal representation does not excuse his failure to comply with the applicable time limit. Further, there was no basis for the AJ who dismissed Complainant's May 2008 hearing request to address the timeliness of Complainant's appeal. Finally, contrary to Complainant's assertion, the Commission's letter granting his attorney's request for an extension of the time to file a brief cannot be construed as a decision on the timeliness of Complainant's appeal. Nothing in the letter addresses the time limits for filing an appeal.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120082974 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 21, 2012
Date
1 The previous decision noted that Complainant notified the Agency on April 29, 2008, that his designated representative no longer represented him.
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0520120352
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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