Robert L. Bunch, Appellant,v.Robert E. Rubin, Secretary, Department of the Treasury,) Agency.

Equal Employment Opportunity CommissionOct 7, 1998
05980677 (E.E.O.C. Oct. 7, 1998)

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before a decision was issued, the agency rescinded the grievance decision,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