0520110624
11-22-2011
Angelo S. Farrow, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Intelligence Agency), Agency.
Angelo S. Farrow,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.
Request No. 0520110624
Appeal No. 0120111776
Agency No. DIA201000061
DENIAL
The Agency timely requested reconsideration of the decision in Angelo
S. Farrow v. Department of Defense, EEOC Appeal No. 0120111776 (July
18, 2011). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to 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).
BACKGROUND
The facts and procedural background are set forth in the previous decision
and are incorporated herein by reference. We note the following salient
facts: The previous decision reversed the Agency’s dismissal of
Complainant’s complaint and remanded the complaint to the Agency for
further processing.
ARGUMENTS ON RECONSIDERATION
In its reconsideration request, the Agency argued that the previous
decision erred as a matter of law in that Complainant’s appeal to
the Commission was untimely. According to the Agency, Complainant’s
complaint was dismissed by final decision dated December 16, 2010.
A declaration provided by an Agency official, and submitted by the Agency
on appeal, indicated that the final decision was received by Complainant,
via certified mail, on December 23, 2010. Complainant’s appeal,
however, was not filed until February 4, 2011. According to the Agency,
the previous decision erred by finding that Complainant filed a timely
appeal.
DETERMINATION
A reconsideration request is an opportunity to demonstrate that the
previous decision involved a clearly erroneous interpretation of material
fact or law; or (2) will have a substantial impact on the policies,
practices, or operations of the Agency. Here, we find no evidence that
the Agency has met the criteria for reconsideration. The Agency has not
established that the previous decision clearly erred with respect to its
determination that Complainant’s appeal was timely filed. Although the
Agency, on appeal, did submit a declaration by an Agency official and a
Track and Confirm computer print out showing the purported delivery date,
we do not find this evidence to be persuasive evidence of the date of
receipt of the Agency’s final decision. The Track and Confirm computer
print out merely shows that an item of mail was delivered to “Waldorf,
MD 20602,” on December 23, 2010. There is no further indication of
delivery to Complainant such as his address or signature.
We determine that there is no persuasive evidence indicating that
Complainant received the final agency decision on December 23, 2010,
as asserted by the Agency.1 Where, as here, there is an issue of
timeliness, “[a]n agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeless.” See
Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994)
(quoting Williams v. Department of Defense, EEOC Request No. 05920506
(August 25, 1992). Therefore, in the absence of specific evidence
indicating that Complainant received the final agency decision on December
23, we find that the Agency has not established that the previous decision
clearly erred.
After reconsidering 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), and it is the decision of the Commission to
DENY the request. The decision in EEOC Appeal No. 0120111776 remains
the Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The Agency shall issue
to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 77960, Washington, DC
20013. 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) (1994 & Supp. IV 1999).
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this
case if the Complainant or the Agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party’s timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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
with the Court 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
___11/22/11_______________
Date
1 To the extent that the declaration of the Agency official is based
on his review of the Track and Confirm computer print out, we find that
section of his declaration pertaining to the December 23 receipt of the
final decision by Complainant to also be unpersuasive.
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0520110624
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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