Judith A. Nease, Petitioner,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 2, 2000
04a00023 (E.E.O.C. Nov. 2, 2000)

04a00023

11-02-2000

Judith A. Nease, Petitioner, v. Louis Caldera, Secretary, Department of the Army, Agency.


Judith A. Nease v. Department of the Army

04A00023

November 2, 2000

.

Judith A. Nease,

Petitioner,

v.

Louis Caldera,

Secretary,

Department of the Army,

Agency.

Petition No. 04A00023

Petition No. 04990039

Appeal No. 01954749

Agency No. 94-09-001

DECISION ON A PETITION FOR CLARIFICATION

On July 17, 2000, the Equal Employment Opportunity Commission (EEOC or

Commission) docketed a petition for clarification from the petitioner

requesting clarification of the Commission's decision in Judith A. Nease

v. Department of the Army, EEOC Petition No. 04990039 (April 6, 2000),

which clarified enforcement of the Commission's order in Judith A. Nease

v. Department of the Army, EEOC Appeal No. 01954749 (July 9, 1996).<1>

The petition for clarification is accepted by the Commission pursuant

to 29 C.F.R. � 1614.503.

In EEOC Petition No. 04990039, the Commission ordered the agency to issue

to petitioner a notice advising her of the right to elect to reinstate her

prior EEO complaint and instructed the agency that the notice shall (a)

provide that petitioner must notify the agency in writing within sixty

(60) days of receipt of said notice should she elect to reinstate the

prior complaint; and (b) advise petitioner that she should consult with

an attorney prior to making a decision on whether to elect to reinstate

her prior complaint. For the reasons set forth therein (which need not

be restated here), the decision did not, however, grant various other

relief sought by petitioner.

By letter dated May 17, 2000, petitioner's counsel stated he had �just

recently received the Commission's decision [in EEOC Petition No. 04990039

and, therefore, was] now forced to request an expansion of time to file

for a reconsideration.� Counsel also briefly noted various arguments

to the effect that the decision in EEOC Petition No. 04990039 involved

a clearly erroneous interpretation of law. Meanwhile, by letter dated

May 16, 2000, the agency issued the notice to petitioner required by the

Order set forth in EEOC Petition No. 04990039. By letter dated June 17,

2000, counsel argued to the Commission that the agency had erred in the

manner in which it issued the notification and that petitioner should not,

therefore, be required to respond to the notice on or before the date

specified therein by the agency. Nonetheless, the record establishes

that petitioner's counsel in fact notified the agency in writing

within the specified time that petitioner had elected to reinstate

her prior complaint. In addition, counsel's letter to the Commission

again argued that the decision in EEOC Petition No. 04990039 involved a

clearly erroneous interpretation of law and stated that the arguments

would be elaborated upon in petitioner's �soon-to-be-filed Motion for

Reconsideration (to be postmarked no later than 06-26-2000).� This

letter was ultimately docketed as the instant petition for enforcement.

No further correspondence has been received from petitioner.

We note that the Commission's regulations do not provide for

reconsideration of decisions on petitions for enforcement. Accordingly,

the decision in EEOC Petition No. 04990039 did not contain any

notification of a right to request reconsideration as provided by 29

C.F.R. � 1614.405. Rather, petitioner was notified that the decision

�is final and there is no further right of administrative appeal from

the Commission's decision [although she had] the right to file a civil

action in an appropriate United States District Court within ninety

(90) calendar days from the date [of receipt of the] decision.� To

the extent that petitioner attempts to circumvent this by requesting

that the previous petition for enforcement be clarified, we note that a

clarification cannot change the result of a prior decision or enlarge

or diminish the relief ordered. See 29 C.F.R. � 1614.503(c). Insofar

as this appears to be what petitioner is seeking through the argument

that the decision in EEOC Petition No. 04990039 should be clarified

to correct various alleged errors of law, it cannot be permitted. To

the extent that petitioner claims to be seeking clarification with

respect to the date by which she must respond to the notice issued by

the agency in accordance with the Commission's Order, we note that the

record establishes that petitioner in fact responded within the time

period specified by the agency. Accordingly, we find that no useful

purpose would be served by addressing petitioner's various contentions

as to the appropriate time period.

Based upon review of the record and for the foregoing reasons,

petitioner's petition for clarification is DENIED.

STATEMENT OF RIGHTS - PETITION FOR CLARIFICATION

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

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:

________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 2, 2000

_______________________

Date

_______________________

Date

1 On 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, where applicable, in deciding the present

appeal. The regulations, as amended, may also be found at the Commission's

website at www.eeoc.gov.