) Request No. 05971098

Equal Employment Opportunity CommissionSep 10, 1999
05971098 (E.E.O.C. Sep. 10, 1999)

05971098

09-10-1999

) Request No. 05971098


Francis Johnson-Feldman, et al. v. Department of Veterans Affairs

05971098

September 10, 1999

Francis Johnson-Feldman, et al., )

Appellants, )

) Request No. 05971098

v. ) Appeal No. 01953168

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DENIAL OF REQUEST FOR RECONSIDERATION

On September 19, 1997, the Department of Veterans Affairs (hereinafter

referred to as the agency) initiated a request to the Equal Employment

Opportunity Commission (the Commission) to reconsider the decision in

Francis Johnson-Feldman, et al. v. Jesse Brown, Secretary, Department of

Veterans Affairs, EEOC Appeal No. 01953168 (August 7, 1997), received

by the agency on August 20, 1997. EEOC regulations provide that

the Commissioners may, in their discretion, reconsider any previous

Commission decision. 29 C.F.R. �1614.407(a). The party requesting

reconsideration must submit written argument or evidence which tends to

establish one or more of the following three criteria: new and material

evidence is available that was not readily available when the previous

decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision

involved an erroneous interpretation of law, regulation, or material fact,

or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);

and the decision is of such exceptional nature as to have substantial

precedential implications, 29 C.F.R. �1614.407(c)(3).

After a review of the agency's request for reconsideration, the previous

decision, and the entire record, the Commission finds that the agency's

request does not meet the criteria in 29 C.F.R. �1614.407(c). Therefore,

it is the decision of the Commission to deny the agency's request.<1> The

decision in EEOC Appeal No. 01953168 (August 7, 1997), finding that the

complaint at issue satisfies the prerequisites for class certification,

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 process the remanded class complaint in

accordance with 29 C.F.R. �1614.204(e) et seq. Within fifteen (15)

calendar days of the date this decision becomes final, the agency shall

notify all class members of the acceptance of the class complaint in

accordance with the requirements of �1614.204(e). Within thirty (30)

calendar days of the date this decision becomes final, the agency shall

provide the appropriate EEOC District Office with a copy of the notice

sent to the class members, and shall request the appointment of an

administrative judge, who shall undertake the continued processing of

the complaint pursuant to �1614.204(f) et seq. The agency shall provide

a copy of the notice of certification and request for appointment of an

administrative judge to the Compliance Officer, as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

September 10, 1999

Date Frances M. Hart

Executive Officer

Executive Secretariat

1The Commission notes that the initial appeal was timely filed, as evidenced

by the March 17, 1995 postmark.