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.