05981066
09-14-2000
Kenneth E. Swanson, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Kenneth E. Swanson v. Department of the Army
05981066
September 14, 2000
.
Kenneth E. Swanson,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Request No. 05981066
Appeal No. 01980127
Agency No. BSETFO9707H0070
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Kenneth
E. Swanson v. Department of the Army, EEOC Appeal No. 01980127 (July
24, 1998).<1> EEOC Regulations provide that the Commission may, in
its discretion, 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).
In his complaint, complainant alleged that (1) he received a letter
of counseling; (2) he was offered early retirement to keep him from
exercising his rights to Reduction-In-Force (RIF); (3) he was not selected
for a Budget Officer position on June 25, 1996; and (4) he was assigned to
Building No. 566. On March 5, 1998, the agency dismissed the complaint
as moot. Specifically, the agency stated that complainant's subsequent
retirement eradicated any possible effects due to the counseling letter.
The agency did not address the remaining claims of the complaint in its
decision. The Commission previously found that the alleged counseling
letter was not rendered moot since there was no evidence in the record
that this letter was expunged from complainant's personnel file.
The Commission also found that the agency's dismissal of the remaining
claims of the complaint by failing to address them in its decision
was improper. Thus, the Commission reversed the agency's decision to
dismiss the complaint, and remanded the complaint for further processing.
On request, the agency states that prior to its March 5, 1998 decision,
it issued a decision dated September 12, 1997, addressing all of the
claims in complainant's complaint. However, there is no evidence in
the record that complainant received the September 12, 1997 decision nor
is there any evidence in the record that his previous appeal concerned
that decision. The record indicates that complainant's appeal involved
the agency's decision dated July 14, 1997, which was superceded by its
subsequent decision dated March 5, 1998. The agency's March 5, 1998
decision, the most recent decision, effectively superceded and rescinded
all of its prior decisions.
On request, the agency indicates that the Commission did not address three
claims of the complaint, i.e., two positions being upgraded to prevent
complainant from exercising his RIF rights; and on March 26, 1996, an
identified female employee, who was subsequently selected for the Budget
Officer position, as described in claim (3), was not qualified for the
Budget Officer position, yet other males were not selected. The record
indicates that complainant did not apply for the March 26, 1996 selection.
Upon review, we find that these incidents do not concern separate issues;
instead they merely involve matters that are part of the already defined
claims. Specifically, the matter concerning the position upgrade in
order to prevent complainant from exercising his RIF rights is similar
or related to claim (2), which concerns the denial of his RIF rights,
and the March 26, 1996 incident is related to claim (3), which concerns
his actual nonselection. Thus, the Commission finds that its previous
decision correctly defined the claims in complainant's complaint.
On request, the agency contends that complainant's claim concerning a
letter of counseling is moot since it was removed from his files and
destroyed. The Commission notes that the agency, for the first time on
request, submits an agency official's affidavit dated August 3, 1998,
indicating such removal. The date of removal of the letter of counseling
is not provided in the August 3, 1998 affidavit. The agency has failed to
show why it could not present evidence supporting its claim of mootness by
the time of the issuance of the Commission's prior decision. Therefore,
we find no reason to reconsider our prior determination that the letter
of counseling claim was not moot.
After a review of the agency's request for reconsideration,
complainant's response thereto, the previous decision, and the
entire record, the Commission finds that the request fails to meet
the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 01980127
remains the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
ORDER (E0800)
The agency is ORDERED to process the remanded claims in accordance with
29 C.F.R. � 1614.108. 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 (K0800)
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)(Supp. V 1993). 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.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 (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
September 14, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.