Gail L. Adams, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
05980784 (E.E.O.C. Nov. 4, 1999)

05980784

11-04-1999

Gail L. Adams, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Gail L. Adams v. Department of the Army

05980784

November 4, 1999

Gail L. Adams, )

Appellant, ) Request No. 05980784

) Appeal No. 01971081

v. ) Agency Nos. 9609G0200

) 9609G0210

Louis Caldera, ) 9609G0220

Secretary, ) 9609G0230

Department of the Army, ) 9609G0240

Agency. ) 9609G0250

___________________________________)

DECISION ON REQUEST FOR RECONSIDERATION

Appellant timely initiated a request to the Equal Employment

Opportunity Commission to reconsider the decision in Gail L. Adams

v. Robert M. Walker, Acting Secretary, Department of the Army, EEOC

Appeal No. 01971081 (April 2, 1998). EEOC Regulations provide that

the Commissioners may, in their discretion, reconsider any previous

Commission decision. 29 C.F.R. �1614.407(a). The party requesting

reconsideration must submit written argument or evidence which tends to

establish one or more of the following three criteria: new and material

evidence is available that was not readily available when the previous

decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision

involved an erroneous interpretation of law, regulation or material fact,

or misapplication of established policy, 29 C.F.R. �1614.407(c)(2);

and the previous decision is of such exceptional nature as to have

substantial precedential implications, 29 C.F.R. �1614.407(c)(3).

After a review of appellant's request for reconsideration, the previous

decision, and the entire record, the Commission finds that appellant's

request does not meet the criteria of 29 C.F.R. �1614.407(c), and

it is the decision of the Commission to deny appellant's request.

The decision of the Commission in Appeal No. 01971081 remains the

Commission's final decision. The agency shall carry out the order set

forth in Appeal No. 01971081, reproduced below. There is no further

right of administrative appeal from a decision of the Commission on a

request for reconsideration.

ORDER (E1092)

To the extent that it has not already done so, the agency shall

consolidate the processing of Complaint Nos. 9609G0210 and 9609G0250,

in accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to

the appellant that it has received the remanded allegations within thirty

(30) calendar days of the date that it receives this decision. The agency

shall issue to appellant a copy of the investigative file and also shall

notify appellant of the appropriate rights within one hundred fifty

(150) calendar days of the date that it receives this decision, unless

the matter is otherwise resolved prior to that time. If the appellant

requests a final decision without a hearing, the agency shall issue a

final decision within sixty (60) days of receipt of appellant's request.

Unless it has already done so, the agency shall determine whether

the midpoint counseling referred to in Complaint No. 9609G0240 was

placed in any official file maintained on appellant, as defined in

EEOC Appeal No. 01971081. If so, the agency shall follow paragraph

(1) with regard to Complaint No. 9609G0240, and process it along with

Complaint Nos. 9609G0210 and 9609G0250. If not, the agency shall process

Complaint No. 9609G0240 in accordance with the regulations set forth in

29 C.F.R. Part 1614, as amended.

A copy of the agency's letter of acknowledgment to appellant 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 (K0595)

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 appellant.

If the agency does not comply with the Commission's order, the appellant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503 (a). The appellant 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. �� 1614.408,

1614.409, and 1614.503(g). Alternatively, the appellant 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. ��

1614.408 and 1614.409. 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 appellant files a civil

action, the administrative processing of the complaint, including any

petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.

RIGHT TO FILE A CIVIL ACTION (Q0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

Nov. 4, 1999

_______________ ______________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat