0520090150
01-09-2009
Gerald A. Lewis, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Gerald A. Lewis,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Request No. 0520090150
Appeal No. 0120081395
Agency No. 200721560FAA05
DENIAL
Complainant requested reconsideration of the decision in Gerald A. Lewis
v. Department of Transportation, EEOC Appeal No. 0120081395 (July
25, 2008). 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).
By regulation, requests must be filed within thirty (30) calendar days
after the party receives the previous decision. 29 C.F.R. � 1614.405(b).
A document is timely if it is received or postmarked before the expiration
of the applicable filing period or, in the absence of a legible postmark,
if it is received by mail within five days of the expiration of the
applicable filing period. 29 C.F.R. � 1614.604(b).
It is noted that the Commission's previous decision included a Certificate
of Mailing indicating that, for purposes of timeliness, the Commission
will presume that the decision was received within five (5) calendar
days of the date on which it was mailed, July 25, 2008. Complainant
is presumed to have received the previous decision no later than July
30, 2008. Thirty days from that date is August 29, 2008. As evidenced
by the post mark date, complainant mailed the request on November 19,
2008, which was beyond the 30-day limit set by regulation. No reason
was provided for the delay.
For the foregoing reasons, the complainant's request is denied.
The decision in EEOC Appeal No. 0120081395 remains the Commission's
final decision. There is no further right of administrative appeal on
the decision of the Commission on this request. To the extent it has
not already done so, the agency shall comply with the Order set forth
in EEOC Appeal No. 0120081395 and repeated below.
ORDER (E0408)
The agency is ordered to process the remanded claims1 in accordance
with 29 C.F.R. � 1614.108 et seq. 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 (K0408)
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)
(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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
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 (Z1008)
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
January 9, 2009
__________________
Date
1 The Commission notes that the record contains a letter dated November
8, 2008, and addressed to the agency's Departmental Office of Civil
Rights, in which complainant requested that the complaint remanded in
EEOC Appeal No. 0120081395 be amended to include the following issue:
"W[as] [complainant] discriminated against based on sex (black male), age
(56 at time of discriminatory act) and in reprisal for prior protected
EEO activity when the agency reassigned [his] position as the FAA
MMAC Small Business Development Program Manager from the Office of
Acquisition Service's Support Division (AMQ-100A) to the Acquisition
Quality and Purchase Card Division (AMQ-430)." The agency should amend
the remanded complaint to include this related issue, pursuant to 29
C.F.R. � 1614.106(d), and investigate it along with the original claim
described in EEOC Appeal No. 0120081395.
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0520090150
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520090150