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