05980677
10-07-1998
Robert L. Bunch, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury,) Agency.
Robert L. Bunch v. Department of the Treasury
05980677
October 7, 1998
Robert L. Bunch, )
Appellant, )
)
v. ) Request No. 05980677
) Appeal No. 02980008
Robert E. Rubin, )
Secretary, )
Department of the Treasury,)
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On April 23, 1998, Robert L. Bunch (appellant) timely initiated a request
to the Equal Employment Opportunity Commission (EEOC or Commission) to
reconsider the decision in Robert L. Bunch v. Department of the Treasury,
EEOC Appeal No. 02980008 (April 7, 1998). 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 misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
or the previous decision is of such exceptional nature as to have
substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
Appellant, a Senior Customs Inspector, appealed the agency's denial of a
negotiated grievance pertaining to how he was rated for advancement to a
Supervisory Customs Inspector position. After the appeal was filed but
before a decision was issued, the agency rescinded the grievance decision,
noting that the position was outside of the bargaining unit, and therefore
not subject to the negotiated grievance process. The agency directed
appellant to pursue the administrative grievance process, which affords
different rights than the negotiated grievance process; to wit, the final
grievance decision is not appealable to the Commission. The previous
decision therefore dismissed the appeal for lack of jurisdiction.
In his request to reconsider, appellant argues that if he had known he
would have to pursue the administrative grievance process instead of
the negotiated grievance process, he would have elected to file an EEO
complaint rather than a grievance. Appellant's request meets none of the
criteria for reconsideration, and is DENIED. The Commission nonetheless
finds it appropriate to reconsider the matter on its own motion.
The Commission has previously explained that once an appeal to the
Commission has been taken, the Commission's jurisdiction over that
appeal affords it discretion over whether to permit the rescission of an
agency's final decision. An agency does not have the power to abrogate
at will the Commission's jurisdiction over appeals pending before it.
Peace-Jackson v. Department of Labor, EEOC Request No. 05950754 (May 12,
1997) (agency attempted to rescind final agency decision on EEO complaint
to conduct supplemental investigation). The previous decision therefore
erred in summarily dismissing appellant's appeal.
The record reflects that the agency initially informed appellant
that he could file either an EEO complaint or a negotiated grievance.
After appellant had pursued the negotiated grievance process up through
an appeal to the Commission, the agency informed appellant that he
could not, in fact, pursue the negotiated grievance process because
the position for which he had been rated was outside of the collective
bargaining unit. The agency's misinformation of appellant, however
innocent, caused appellant to waive his right to file an EEO complaint on
the promotional rating. In the interests of equity and judicial economy,
the Commission therefore finds it appropriate to remand this matter to
allow appellant to pursue an EEO complaint.
Upon review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request does not meet any of the criteria of 29 C.F.R. �1614.407(c) and
therefore is DENIED. However, having reconsidered the matter on its own
motion, it is the decision of the Commission to MODIFY the decision in
Appeal No. 02980008 as discussed herein, and to REMAND the matter for
further proceedings consistent with this decision and the Order of the
Commission, below. There is no further right of administrative appeal
on a decision of the Commission on a Request for Reconsideration.
ORDER
The agency is directed to take the following action:
Within fifteen (15) days of its receipt of this decision, the agency shall
contact appellant in writing to arrange a meeting with an EEO Counselor.
Appellant's EEO Counselor contact shall be deemed timely for purposes
of 29 C.F.R. �1614.107(b).
A copy of the agency's letter to appellant must be sent 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
appellant. If the agency does not comply with the Commission's order,
appellant may petition the Commission for enforcement of the order.
29 C.F.R. �1614.503 (a). 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, 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 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.
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 an 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 EIGHTY (180)
CALENDARS 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:
Oct. 7, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat