Kenneth E. Swanson, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionSep 14, 2000
05981066 (E.E.O.C. Sep. 14, 2000)

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.