05991130_r
08-31-2000
Donald L. Connely, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Donald L. Connely, )
Complainant, )
)
v. ) Request No. 05991130
) Appeal No. 01986766
Rodney E. Slater, ) Agency No. 5-98-5145
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On September 14, 1999, the Equal Employment Opportunity Commission
received a request from the agency to reconsider the decision in Connely
v. Department of Transportation, EEOC Appeal No. 01986766 (August 27,
1999).<1> The Commission, in its discretion, may grant a party's
request to reconsider a decision issued under the regulation set forth
at 64 Fed. Reg 37,644, 37,659 (1999) (to be codified as 29 C.F.R. �
1614.405(a)), if the party demonstrates that:
The appellate decision involved a clearly erroneous interpretation of
material fact or law; or
The decision will have a substantial impact on the policies, practices
or operations of the agency.
64 Fed. Reg 37,644, 37,659 (1999) (to be codified as and hereinafter
cited as 29 C.F.R. � 1614.405(b)).
Complainant alleged in the instant complaint that he was discriminated
against when the agency proposed to reassign him on April 28, 1998.
The agency dismissed the complaint on the grounds that complainant alleged
that a proposed action was discriminatory. The previous decision found
that complainant was reassigned on May 22, 1998 and that the proposed
action merged into the actual reassignment. The previous decision
reversed the agency and ordered the agency to process the claim of the
actual reassignment. In the agency's request to reconsider the previous
decision, the agency argues that the issue of complainant's reassignment
was the subject of another complaint filed by complainant ( Complaint
No. 5-98-5144), which was investigated by the agency and is awaiting a
decision by the agency.
The agency has submitted a copy of the investigative file for Complaint
No. 5-98-5144 which shows that complainant raised the reassignment claim
in Complaint No. 5-98-5144. Therefore, we shall reconsider the previous
decision. The Commission finds that the instant complaint states the
same claim raised by complainant in another complaint. Therefore,
the Commission finds that the instant complaint is properly dismissed
pursuant to the regulation set forth at 64 Fed. Reg. 37,644, 37656 (to be
codified as 29 C.F.R. � 1614.107(a)(1)). To the extent that complainant
only intends to raise a claim regarding the proposed reassignment in
the instant complaint (rather than the actual reassignment), we find
that such a claim was properly dismissed by the agency as a proposed
action pursuant to the regulation set forth at 64 Fed. Reg. 37,644,
37656 (to be codified as 29 C.F.R. � 1614.107(a)(5)).
The decision in EEOC Appeal No. 01986766 is reversed. There is no further
right of administrative appeal from a decision of the Commission on a
request for reconsideration.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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. 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.
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:
August 31, 2000
________________ ______________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ 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.