Richard Shavensky, Appellant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionJan 29, 1999
01981887 (E.E.O.C. Jan. 29, 1999)

01981887

01-29-1999

Richard Shavensky, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Richard Shavensky v. Department of Transportation

01981887

January 29, 1999

Richard Shavensky, )

Appellant, )

)

v. ) Appeal No. 01981887

) Agency No. 1981020

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

_________________________________)

DECISION

Appellant filed the instant appeal from the agency's December 10, 1997

decision dismissing a portion of appellant's complaint for electing

to file a grievance on the same matter and the remaining portion of the

complaint for failing to timely contact an EEO Counselor. In the agency's

decision the agency did not define the four allegations which it found

were not timely raised with an EEO Counselor. The agency defined the two

allegations which the agency found were raised in a grievance as follows:

Two of the three training review board members made a recommendation to

Person A to terminate appellant's training.

Appellant was offered a position in Morristown in lieu of separation.

In a letter dated November 24, 1997 appellant attempted to clarify

the instant complaint dated September 29, 1997. Appellant stated

that he had numbered the items in his complaint 1 through 6, but

"[a]fter reading the grievance, the only item in question is number

one of the EEO complaint." After reviewing appellant's complaint

and the November 24, 1997 letter from appellant, the Commission finds

that it is not clear which allegations appellant is pursuing and which

allegations are background information or merely evidence in support of

other allegations. The agency's failure to define all the allegations

it was dismissing also renders doubt as to the proper definition of

the complaint. The Commission shall remand the matter so that the

agency can contact appellant to clarify the complaint. Thereafter,

the agency shall redetermine whether dismissal of any of the allegations

for electing to raise the matter in a negotiated grievance procedure and

for failure to timely contact an EEO Counselor is appropriate pursuant

to 29 C.F.R. �1614.107(d) and �1614.107(b).

The agency's decision dismissing the complaint is VACATED and we REMAND

the complaint to the agency for further processing in accordance with

this decision and applicable regulations.

ORDER

The agency shall contact appellant to clarify the complaint. Thereafter,

the agency shall redetermine whether dismissal of any of the allegations

in the complaint for electing to raise the matter in a negotiated

grievance procedure and for failure to timely contact an EEO Counselor

is appropriate pursuant to 29 C.F.R. �1614.107(d) and �1614.107(b).

Within 90 days of the date this decision becomes final the agency

shall either issue a letter to appellant accepting the complaint for

investigation or issue a new decision dismissing the complaint. A copy

of the letter accepting the complaint or new decision dismissing the

complaint must be sent to the Compliance Officer as referenced herein.

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� (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 APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark,

the request to reconsider shall be deemed filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and any supporting documentation must be submitted with your

request for reconsideration. The Commission will consider requests

for reconsideration filed after the deadline only in very limited

circumstances. See 29 C.F.R. �1614.604(c).

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:

January 29, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations