05991062
10-20-2000
Alison Tucker, Complainant, v. William S. Cohen, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Alison Tucker v. Department of Defense (Defense Commissary Agency)
05991062
October 20, 2000
.
Alison Tucker,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Request No. 05991062
Appeal No. 01985126
Agency No. DA194CA0205E
DECISION ON REQUEST FOR RECONSIDERATION
On August 23, 1999, the agency timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Alison Tucker v. Department of Defense, EEOC Appeal
No. 01985126 (July 23, 1999).<1> EEOC Regulations provide that the
Commission may, in its discretion, reconsider any previous Commission
decision where the requesting party demonstrates that: (1) the appellate
decision involved a clearly erroneous interpretation of material fact
or law; or (2) the appellate decision will have a substantial impact on
the policies, practices, or operations of the agency. See 29 C.F.R. �
1614.405(b)).
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the request fails to meet the criteria of 29 C.F.R. � 1614.405(b).
The agency bases its request on the argument that the matter is moot
due to complainant's resignation from the agency. The agency argues
that this is new and material evidence that was not readily available
when the previous decision was issued. We note, however, that under
the revised 29 C.F.R. Part 1614 regulations, effective November 9, 1999,
�new and material evidence� is no longer one of the criteria on which a
request for reconsideration can be granted. As the agency put forth no
evidence to demonstrate either of the two criteria for reconsideration,
it is the decision of the Commission to deny the request. Accordingly,
the decision in EEOC Appeal No. 01985126 remains the Commission's final
decision and the agency shall comply with the Order issued therein, as
modified below.<2> There is no further right of administrative appeal
on the decision of the Commission on this request for reconsideration.
ORDER
The agency is ORDERED to resume processing of complainant's complaint
from the point processing ceased unless, within 30 calendar days of
the date this decision becomes final, complainant informs the agency
that she elects to require the agency to comply with the terms of the
settlement agreement. If complainant does not so elect, the agency shall
resume processing of complainant's complaint from the point processing
ceased pursuant to 29 C.F.R. � 1614.108 et seq.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant 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. �� 1614.407 and 1614.408. 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
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 20, 2000
__________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 Although the prior decision indicated that reinstatement of the
complaint required the return of any benefits received by complainant
pursuant to the settlement agreement, we now find that this is not
required. Unless complainant opts for specific enforcement of the
terms of the settlement agreement, her complaint must be reinstated
whether or not she returns any benefit received pursuant to the
settlement agreement. We express no opinion on the question of whether
complainant may be required to repay some or all of the benefits she
received under the settlement agreement if, at the conclusion of her
case, she recovers less than the value of those benefits. See Basu
v. Department of Agriculture EEOC Appeal No. 01970460 (April 8, 1999),
citing Oubre v. Entergy Operations, Inc. 522 U.S. 422, 118 S.Ct. 838
(1998) and Hogue v. Southern Ry., 390 U.S. 516 (1968) (noting that the
return of the proceeds of a settlement agreement is not a prerequisite
for continued processing of the complaint).