Alison Tucker, Complainant,v.William S. Cohen, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity CommissionOct 20, 2000
05991062 (E.E.O.C. Oct. 20, 2000)

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).