Request No. 05A30645

Equal Employment Opportunity CommissionApr 21, 2003
05A30645 (E.E.O.C. Apr. 21, 2003)

05A30645

04-21-2003

Request No. 05A30645


Clifford J. Herron v. Department of Agriculture

05A30645

April 21, 2003

.

Clifford J. Herron et. al,

Class Agent,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Request No. 05A30645

Appeal Nos. 01A04725 et. al

Agency Nos. 97-1290 et. al

Hearing Nos. 100-98-7120x et. al

DENIAL OF REQUEST FOR RECONSIDERATION

Clifford J. Herron (class agent) through counsel and on behalf of Harold

Connor (class agent) timely initiated a request to the Equal Employment

Opportunity Commission (EEOC or Commission) to reconsider the decision in

Clifford J. Herron v. Department of Agriculture, EEOC Appeal No. 01A04725

(September 27, 2001). 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).

After a review of the class request for reconsideration, 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. 01A04725 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. The Commission's Order set forth in

its previous decision continues in full force and effect and is restated

in full below.

ORDER

The agency is hereby directed to take the following action:

1. The agency is directed to submit a copy of the complaint file to

the EEOC Washington Field Office within fifteen (15) calendar days of

the date this decision becomes final. The agency shall provide written

notification to the Compliance Officer at the address set forth below

that the complaint file has been transmitted to the Hearings Unit.

2. The agency is directed to supplement the record with applicant flow

data for a statistical analysis including but not limited to:

a) Machine readable data (hereinafter in a format deemed acceptable

by the AJ) on the applicants to FSA vacancy announcements during the

relevant time period as established by the AJ;

b) Machine-readable data on the vacancy announcements issued during

the relevant time period as established by the AJ and;

c) Machine readable data on the successful candidate's prior position

for each vacancy.

3. The agency is directed to provide standard computer documentation

describing the meaning of any variables used in any data produced and

how the agency's files were prepared.

4. The AJ may in his/her discretion reopen the period for discovery

to allow the parties to take depositions or other forms of discovery

regarding any additional analyses performed or to further clarify the

additional data produced by the agency.

5. The AJ shall take evidence and issue a finding and decision on the

issue of reprisal.

Thereafter the Administrative Judge shall issue a decision on the

complaint in accordance with 29 C.F.R. � 1614.204(h) and the agency

shall issue a final action in accordance with 29 C.F.R. � 1614.204(j).

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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)

(1994 & Supp. IV 1999). 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.

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

April 21, 2003

__________________

Date