UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 02-30402 Summary Calendar

GENNIE L. GANTT

Plaintiff - Appellant

VERSUS

UNITED STATES DEPARTMENT OF ARMY

Defendant - Appellee

Appeal from the United States District Court For the Western District of Louisiana 01-CV-1592 September 19, 2002

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges

PER CURIAM:*

The only significant issue which merits discussion on appeal

is Gantt’s argument that the district court erred in denying his

motion for new trial based on newly discovered evidence.

The district court concluded that Gantt’s action was time

barred for the following reason:

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. On December 22, 1998, the EEOC issued its decision affirming the Army’s final agency decision. Gantt had thirty days from the receipt of that notice to file for reconsideration. Fed.R.Civ.P.6(e) states that service by mail adds 3 days to a period computed from time of service. Gantt mailed his request for reconsideration on January 26, 1999. Thirty three days from December 22 is January 24. Gantt’s request was mailed January 26; therefore, it was not timely and could not toll the statutory time limit. A timely petition for reconsideration will toll the filing deadline in district court, but an untimely petition has no tolling effect. Belhomme v. Widnall,

, 1216- 17(10th Cir. 1997). Accordingly, summary judgment will be granted and Gantt’s suit will be dismissed.

Gantt filed no affidavit or other evidence with his summary

judgment evidence indicating when he received the EEOC’s decision

affirming the Army’s final decision. Thus, in the absence of

evidence from Gantt as to the date he received that decision, the

district court applied the Federal Rule of Civil Procedure 6(e) to

determine when, under the rules, Gantt was deemed to have received

the notice of the EEOC’s decision.

Following the district court’s dismissal of his suit, Mr.

Gantt filed a timely Rule 59(e) motion. Gantt attached a return

receipt to his motion and stated in his memorandum that Gantt

received the EEOC decision on December 28, 1998. Assuming that

Gantt received the decision on December 28th instead of December

26th, as determined by the district court by applying Rule 6(e)

F.R.C.P., Gantt timely mailed his request for reconsideration.

2 The district court did not abuse its discretion in declining

to consider Gantt’s new evidence and grant a new trial under these

circumstances.

In deciding whether to consider new evidence filed in support

of a Rule 59(e) motion, the court should consider such factors as:

(1) the reasons for a moving party’s failure to furnish evidence as

part of his original summary judgment evidence; (2) the importance

of the evidence to the moving party’s case; (3) whether the omitted

evidence was available before the moving party responded to the

motion for summary judgment; and (4) the likelihood of prejudice to

the non-moving party if the case is reopened. Lavespere v. Niagara

Mach. & Tool Works, Inc.

(5th Cir. 1990).

The return receipt was Mr. Gantt’s document and he failed to

explain in his memorandum in support of his motion for new trial

why the certified mail receipt constituted newly discovered

evidence; that is, why it was not available to him to provide as

part of his original summary judgment evidence. Mr. Gantt offered

no evidence to show that the receipt was not available to him prior

to the entry of the summary judgment. The unexcused failure to

present evidence which is available at the time a motion is under

consideration is a legitimate reason for denying a motion to

reconsider. Matador Petroleum Corp. v. St. Paul Surplus Lines

Insurance. Co.,

, 658 n.1(5th Cir. 1999); Russ v.

International Paper Co.,

(5th Circ. 1991). See

also, Lake Hill Motors, Inc. V. Jim Bennett Yacht Sales, Inc., 246

(5th Cir. 2001).

Even if the district court had considered the return receipt

Gantt filed in his Rule 59 motion, the receipt alone did not

establish that the EEOC decision was delivered along with the

envelope containing the receipt. In other words, the return

receipt had a reference number on its face that corresponds to

Gantt’s case, but Gantt filed no affidavit asserting that the

return receipt accompanied the EEOC decision.

Accordingly, for the reasons stated above, the district court

did not abuse its discretion in denying Mr. Gantt’s motion for new

trial.

AFFIRMED.

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