05990365
05-26-2000
_________________, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
_________________ v. Department of the Army
05990365
May 26, 2000
_________________, )
Complainant, )
)
v. ) Request No. 05990365
) Appeal No. 01985247
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
The Department of the Army (agency) timely initiated a request for
the Equal Employment Opportunity Commission (EEOC or Commission) to
reconsider the decision in _________________ v. Department of the
Army, EEOC Appeal No. 01985247 (January 21, 1999). EEOC regulations
provide that the Commissioners may, in their discretion, reconsider any
previous decision where the party demonstrates that: (1) the previous
decision involved clearly erroneous interpretation of material fact or
law; or (2) the decision will have a substantial impact on the policies,
practices, or operation of the agency. 64 Fed. Reg. 37,644, 37,659
(to be codified at 29 C.F.R. � 1614.405(b)).<1>
Complainant, a member of the Florida Army National Guard, filed a
complaint which she characterized as a "Formal Military EEO Complaint,"
alleging, as best may be discerned, that in reprisal for her prior
civilian EEO activity, a civilian employee of the agency gave her a
negative reference when contacted by a military employee of another
division of the agency. The agency refused to process the complaint,
stating that it was a military matter not within the purview of the
Commission's administrative EEO process. The Commission construed
the agency's response as a final agency decision, docketed an appeal
therefrom, and remanded the case to the agency for a supplemental
investigation as to whether complainant is a civilian or military employee
of the agency and whether the subject matter of her complaint pertains to
her capacity as a civilian or military employee, and a determination as
to whether the complaint accordingly should be processed or dismissed.
The agency filed a request for reconsideration in which it merely
reiterated that "this is a military complaint which does not come under
our [the agency's EEO office] jurisdiction ...."
In order to merit the reconsideration of a prior Commission decision, the
requesting party must submit written argument which tends to establish
that at least one of the criteria of 29 C.F.R. � 1614.405(b) is met.
The Commission's scope of review on a request for reconsideration
is narrow. Lopez v. Department of the Air Force, EEOC Request No.
05890749 (September 28, 1989). A request for reconsideration is not
merely a form of a second appeal. Regensberg v. U.S. Postal Service,
EEOC Request No. 05900850 (September 7, 1990). After a careful review
of the record, the Commission finds that the agency's request for
reconsideration does not meet the regulatory criteria of 29 C.F.R. �
1614.405(b).
The Commission has processed several appeals filed by complainant,
e.g., Heidi Hamby v. Department of the Army, EEOC Appeal No. 01972953
(July 7, 1999), and herein takes judicial notice that complainant at
last report was employed by the agency in a civilian position which
required her to hold a commission in the Army Reserve; and further,
that complainant was at some point discharged from the service. It is
not clear whether, and in what capacity, complainant was employed by
the agency at the time of the events cited in the complaint that is the
subject of the instant proceedings. Accordingly, the agency has been
ordered to conduct a supplemental investigation to determine whether
the instant complaint falls within the Commission's jurisdiction; if
so, to process the complaint, and if not, to dismiss the complaint.
The Order contained in the previous decision is clarified below.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request does not meet the criteria of 29 C.F.R. � 1614.405(b), and is
therefore DENIED. The decision of the Commission in Appeal No. 01985247
remains the Commission's final decision in this case. There is no further
right of administrative appeal from a decision of the Commission on a
request for reconsideration.
ORDER
Within thirty (30) calendar days of the date on which agency receives
this decision, the agency shall conduct a supplemental investigation
and shall determine whether complainant was employed by the agency in
a civilian or military capacity, or both, at the time of the events
at issue in the complaint at bar. If complainant was employed by the
agency in a dual, that is, civilian and military capacity, the agency
shall then determine whether the events at issue in the complaint relate
to complainant's civilian or military employment status. The results
of the supplemental investigation shall be documented for the record.
The agency shall then determine anew whether complainant's complaint
is subject to processing in the administrative process governed by the
Commission's regulations, and shall issue either a notice of processing or
a final agency decision dismissing the complaint, as may be appropriate.
STATEMENT OF RIGHTS - ON RECONSIDERATION
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (Z1199)
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:
May 26, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________________________
Equal Opportunity Specialist Date
1On November 9, 1999, revised regulations governing the EEOC's Federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.