Mark G. Levitoff, et al., Appellant,
v.
Edward R. Madigan, Secretary, Department of Agriculture, Agency.
Request No. 05920601
Appeal No. 01913685
Agency No. 910402
Hearing No. 370-91-X2272
September 10, 1992
 
DENIAL OF REQUEST TO REOPEN
  
INTRODUCTION
 
On April 22, 1992, Mark G. Levitoff as class agent (hereinafter appellant) initiated a request to the Equal Employment Opportunity Commission to reopen and reconsider the decision in Mark G. Levitoff, et al. v. Edward Madigan, Secretary, Department of Agriculture, EEOC Appeal No. 01913685 (March 17, 1992). EEOC Regulations provide that the Commissioners may, in their discretion, reopen and reconsider any previous decision. 29 C.F.R. 1613.235(a). A party requesting reopening must submit written argument or evidence which tends to establish one or more of the three criteria prescribed by 29 C.F.R. 1613.235(b). Appellant bases his request on 29 C.F.R. 1613.235(b)(1) (new and material evidence is available that was not readily available when our previous decision was issued), and 29 C.F.R. 1613.235(b)(2) (the previous decision involved an erroneous interpretation of law or regulation or misapplication of established policy). In addition, appellant asserts that the unique circumstances of the case, in which processing was forestalled for over three years, warrants reopening and reconsideration. For the reasons set forth herein, appellant's request is denied.
  
ISSUE PRESENTED
 
Whether appellant timely filed his request to reopen pursuant to EEOC Regulation 29 C.F.R. 1613.235(b).
  
BACKGROUND
 
Appellant, a Region 5 Forest Service employee, submitted a class complaint in January 1989 on behalf of all males in Region 5 who were allegedly discriminated against as a result of a number of agency practices. As represented in appellant's Request to Reopen, the practices were comprised of the broad groupings of nonselection of employees and applicants for positions, discriminatory recruitment practices favoring females, denial of training opportunities, unequal pay, and generic across the board discrimination. While stating that the complaint was filed on behalf of males, the complaint also alleged discrimination on the bases of race, color, religion, national origin, sex, handicap, sexual harassment, reprisal, age and marital status. After some delay1 the complaint was forwarded to an EEOC Administrative Judge (AJ) for a recommendation as to whether the class complaint should be accepted or rejected.
 
The AJ issued a recommended decision that the complaint be accepted on the bases of sex and reprisal only, and only on the issue of whether male employees and former employees of Region 5 were discriminated against in the filling of vacancies. The AJ recommended rejection of the remaining issues and bases. The agency issued a final decision (FAD) which accepted the nonselection issue, defined as pertaining to the Region 5 practice of allegedly cancelling vacancy announcements when women do not show up on the certificate and readvertising under the focused placement and/or accelerated development program. The FAD accepted this issue on the basis of sex only, rejecting reprisal, and rejected all other issues. Appellant appealed. In the previous decision on the appeal, the agency's decision was affirmed.
 
Appellant submitted his Request to Reopen by express mail. The mailing envelope carries a postmark of April 22, 1992.
  
ANALYSIS AND FINDINGS
 
By regulation, requests to reopen must be made within 30 days of receipt of the decision issued on an appeal. 29 C.F.R. 1613.235(b). A request is deemed timely if it is postmarked before the expiration of the filing period. 29 C.F.R. 1613.240(b).
 
According to the certified mail receipt cards, appellant and his attorney received the appeal decision on March 20, 1992. The 30 day time period expired on April 20, 1992 (since the 30th day, April 19th, fell on a Sunday, the period is deemed extended to the next business day). 29 C.F.R. 1613.240(a). Appellant's request on April 22, 1992 was, therefore, beyond the 30 day time limit set by the regulations. Appellant proffers no explanation for the delay in his request. Therefore, we find that appellant's request is untimely and it is hereby DENIED.
  
CONCLUSION
 
After a review of the appellant's request to reopen, the previous decision, and the record, the Commission finds that appellant's request is untimely, and it is hereby denied. The decision of the Commission in EEOC Appeal No. 01913685 (March 17, 1992) remains the Commission's final decision in this matter. There is no further right of administrative appeal from the decision of the Commission on this request to reopen.
  
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST TO REOPEN
  
RIGHT TO FILE A CIVIL ACTION (P0391)
 
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 THIRTY (30) CALENDAR DAYS of the date that you receive this decision. The limitations period for filing a civil action under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 621 et seq. (ADEA) may differ from the period set out for the filing of civil actions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. 791. You may be foreclosed from filing a civil action on any claim brought under the ADEA if you fail to file within the limitations period applied by the Court in the jurisdiction in which your action is 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. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work.
  
RIGHT TO REQUEST COUNSEL (Z0391)
 
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 THIRTY (30) CALENDAR DAYS of the date you receive the Commission's decision.
 
 
For the Commission:
 
Frances M. Hart
Executive Officer
Executive Secretariat