05971056
06-05-2000
Ray N. Jackson, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Ray N. Jackson v. Department of the Air Force
05971056
June 5, 2000
Ray N. Jackson, )
Complainant, ) Request No. 05971056
) Appeal No. 01956115
v. )
)
F. Whitten Peters, )
Secretary, )
Department of the Air Force, )
Agency. )
____________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On September 11, 1997, Ray N. Jackson (hereinafter referred to as
complainant) initiated a request to the Equal Employment Opportunity
Commission (Commission) to reconsider the decision in Ray N. Jackson
v. Sheila E. Widnall, Secretary, Department of the Air Force, EEOC
Appeal No. 01956115 (July 29, 1997).<1> EEOC Regulations provide that
the Commission may, in its discretion, reconsider any previous decision
where the party demonstrates that: (1) the previous decision involved
a clearly erroneous interpretation of material fact or law; or (2)
the decision will have a substantial impact on the policies, practices,
or operation of the agency. 64 Fed.Reg. 37,644, 37,659 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.405(b)).
After a review of complainant's request for reconsideration, the
agency's response thereto, the previous decision, and the entire record,
the Commission finds that complainant's request does not meet the
criteria in 29 C.F.R. �1614.405(b). Therefore, it is the decision of the
Commission to deny complainant's request.<2> The decision in EEOC Appeal
No. 01956115 (July 29, 1997) remains the Commission's final decision.
The agency shall comply with the provisions of the Order set forth below.
There is no further right of administrative appeal on a decision of the
Commission on this Request for Reconsideration.
ORDER
The agency is ORDERED to resume processing of allegation 1 in accordance
with 64 Fed.Reg. 37,644, 37,657 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.109). Specifically, the agency shall
request that the Commission appoint an Administrative Judge to conduct a
hearing in the matter. The agency shall acknowledge to appellant that
it has received the remanded allegations, and request the Commission
to appoint an Administrative Judge within thirty (30) calendar days of
the date this decision becomes final. A copy of the agency's letter of
acknowledgement to appellant, and a copy of the notice that transmits
the matter to the Administrative Judge must be sent to the Compliance
Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (Q0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing 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:
__06-05-00________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify
that the decision was mailed to claimant, claimant'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 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.
2The Commission notes that while the AJ stated, in part, that appellant
failed to establish a prima facie case because he did not show that he
was treated differently than similarly situated employees, appellant must
only present evidence which, if unrebutted, would support an inference
that the agency's actions resulted from discrimination. See O'Connor
v. Consolidated Coin Caters Corp., 116 S.Ct. 1307 (1996); Enforcement
Guidance on O'Connor v. Consolidated Coin Caters Corp., EEOC Notice
No. 915.002, n. 4 (September 18, 1996). Nevertheless, we agree with the
AJ that complainant failed to establish a prima facie case with regard
to issues 2 and 3, in that the actions in question were not sufficiently
severe or pervasive such as to create a hostile work environment.