) 05970659

Equal Employment Opportunity CommissionDec 3, 1998
05970629 (E.E.O.C. Dec. 3, 1998)

05970629

12-03-1998

) 05970659


Ronald Estus, Curtis Mitchell, Clarence Wilson, Rufus Abernathy,

Andrew L. Horton, Arthur Rhodes v. Department of Veterans Affairs

05970629

December 3, 1998

Ronald Estus, )

Curtis Mitchell, )

Clarence Wilson, ) Request Nos. 05970629

Rufus Abernathy, ) 05970626

Andrew L. Horton, ) 05970625

Arthur Rhodes, ) 05970624

Appellants, ) 05970658

) 05970659

v. ) Appeal Nos. 01962215

) 01962214

Togo D. West, Jr., ) 01962213

Secretary, ) 01962216

Department of Veterans Affairs, ) 01961514

Agency. ) 01962212

)

DENIAL OF REQUEST FOR RECONSIDERATION

On March 21, 1997, the Department of Veterans Affairs (hereinafter

referred to as the agency) initiated a request to the Equal Employment

Opportunity Commission (Commission) to reconsider the decisions

in Ronald Estus v. Jesse Brown, Secretary, Department of Veterans

Affairs, EEOC Appeal No. 01962215 (February 26, 1997); Curtis Mitchell

v. Jesse Brown, Secretary, Department of Veterans Affairs, EEOC Appeal

No. 01962214 (February 26, 1997); Clarence Wilson v. Jesse Brown,

Secretary, Department of Veterans Affairs, EEOC Appeal No. 01962213

(February 26, 1997); and Rufus Abernathy v. Jesse Brown, Secretary,

Department of Veterans Affairs, EEOC Appeal No. 01962216 (February

26, 1997), all of which were received by the agency on March 3, 1997.

On April 2, 1997, Ronald Estus, Curtis Mitchell, Clarence Wilson, and

Rufus Abernathy filed a timely cross-request for reconsideration, and

Arthur Rhodes and Andrew L. Horton initiated a request to reconsider

the decisions in Arthur Rhodes v. Jesse Brown, Secretary, Department

of Veterans Affairs, EEOC Appeal No. 01962212 (February 26, 1997);

and Andrew L. Horton v. Jesse Brown, Secretary, Department of Veterans

Affairs, EEOC Appeal No. 01961514 (February 26, 1997), received by their

attorney on March 3, 1997. EEOC regulations provide that the Commissioners

may, in their discretion, reconsider any previous Commission decision.

29 C.F.R. �1614.407(a). The party requesting reconsideration must submit

written argument or evidence which 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 a 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).

The Commission has determined that the cases herein involve substantially

similar issues, and are appropriate for consolidation. After a review

of the agency's and appellants' requests for reconsideration, the

previous decisions, and the entire record, the Commission finds that

neither the agency's nor appellants' request meets the criteria in 29

C.F.R. �1614.407(c), and, therefore, it is the decision of the Commission

to deny the requests. The decisions in EEOC Appeal Nos. 01962215,

01962214, 01962213, 01962216, 01961514, and 01962212 (February 26, 1997)

remain the Commission's final decisions. The agency shall comply with

the provisions of the Order set forth below. There is no further right

of administrative appeal on a decision of the Commission on this Request

for Reconsideration.

ORDER

Within fifteen (15) calendar days of the date this decision becomes

final, the agency shall contact appellants to provide them with an

opportunity to show: 1. that they timely contacted an EEO Counselor;

and 2. that, if necessary, they should be granted an extension of

the time limits for contacting an EEO Counselor. Within sixty (60)

calendar days of the date this decision becomes final, the agency shall

either: 1. issue a new final decision dismissing the complaints on the

grounds that appellants failed to timely contact an EEO Counselor;

or 2. issue a new final decision accepting, rejecting, or modifying

the administrative judge's findings and conclusions. In the new final

decision, the agency shall specifically define the allegations at issue.

A copy of the agency's new final decision must be sent to the Compliance

Officer, as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION

RIGHT TO FILE A CIVIL ACTION (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such 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. In the alternative,

you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR

DAYS of the date you filed your complaint with the agency, or filed your

appeal with the Commission. 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.

Filing a civil action will terminate the administrative processing of

your complaint.

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:

Dec. 3, 1998

Date Frances M. Hart

Executive Officer

Executive Secretariat