05980215
04-05-2000
Rod H. McIntyre, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Rod H. McIntyre v. Department of the Navy
05980215
April 5, 2000
Rod H. McIntyre, )
Complainant, ) Request No. 05980215
) Appeal No. 01953384
v. ) Agency No. DON-93-62271-007
) Hearing No. 370-94-X2716
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DENYING REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (Commission) to reconsider the decision in Rod H. McIntyre
v. Department of the Navy, EEOC Appeal No. 01953384 (November 21,
1997).<1> 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 64 Fed. Reg. 37,644,
37,654 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.405(b)).
After a review of the agency's 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 Rod H. McIntyre v. Department of the Navy, EEOC Appeal No. 01953384
(November 21, 1997) remains the Commission's final decision. The agency
shall comply with the Order in the prior decision, as restated below.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
ORDER (D1092)
The agency is ORDERED to VACATE the final agency decision, adopt the
decision of the AJ and take the following remedial action:
(1) Injunctive relief in the form of all necessary steps to eliminate
the discriminatory practice of considering gender in promotion decisions
in violation of Title VII, and
(2) Reasonable attorney's fees and costs incurred by appellant
in the processing of Agency Complaint No. DON-62271-93-007 (EEOC
No. 370-94-X2716).
(3) The agency shall post a notice of the findings in this decision in
accordance with the POSTING ORDER cited below.
(4) The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision," including evidence that the corrective action has been
implemented.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Naval Postgraduate School, Monterey,
California, facility copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H1199)
If complainant has been represented by an attorney (as defined by 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to
an award of reasonable attorney's fees incurred in the processing of the
complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall
be paid by the agency. The attorney shall submit a verified statement of
fees to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
April 5, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission, dated __________, which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et al. has occurred at this facility.
Federal law requires that there be no discrimination against any employee
or applicant for employment because of the person's RACE, COLOR, RELIGION,
SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect
to hiring, firing, promotion, compensation, or other terms, conditions
or privileges of employment.
The Department of the Navy, Navy Post Graduate School, Monterey,
California supports and will comply with such Federal law and will not
take action against individuals because they have exercised their rights
under law.
The Department of the Navy, Navy Post Graduate School, Monterey,
California, was found to have discriminated against an individual
regarding its decision not to hire him and has been ordered to take all
necessary steps to eliminate the discriminatory practice of considering
gender in its promotion decisions and to pay attorney's fees and costs.
The Department of the Navy, Navy Post Graduate School, Monterey,
California, will ensure that officials responsible for personnel decisions
and terms and conditions of employment will abide by the requirements
of all Federal equal employment opportunity laws.
The Department of the Navy, Navy Postgraduate School, Monterey,
California, will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to oppose
practices made unlawful by, or who participates in proceedings pursuant
to, Federal equal employment opportunity law.
____________________________
Date Posted: _______________________
Posting Expires: ___________________
29 C.F.R. Part 1614
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.