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