Steven M. Botello, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 9, 2000
05980133 (E.E.O.C. Mar. 9, 2000)

05980133

03-09-2000

Steven M. Botello, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Steven M. Botello v. Department of the Army

05980133

March 9, 2000

Steven M. Botello, )

Complainant, )

) Request No. 05980133

v. ) Appeal No. 01971104

) Agency No. BUDEFO9510F0440

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

______________________________ )

DENYING REQUEST FOR RECONSIDERATION

The agency initiated a request to the Equal Employment Opportunity

Commission (Commission) to reconsider the decision in Botello

v. Department of the Army, EEOC Appeal No. 01971104 (October 28, 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

complainant's response thereto, 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 Botello v. Department of the Army,

EEOC Appeal No. 01971104 (October 28, 1997) remains the Commission's

final decision. There is no further right of administrative appeal on

the decision of the Commission on this request for reconsideration.<2>

ORDER

The agency is ORDERED to resume processing of the complainant's

complaints from the point processing ceased. Specifically, the agency

shall forward the complainant's complaints to an EEOC Administrative

Judge for scheduling of a hearing. The agency shall acknowledge to the

complainant that it has received the remanded allegations within thirty

(30) calendar days of the date this decision becomes final.

A copy of the agency's letter of acknowledgment to the complainant

and a copy of the correspondence that transmits the COMPLAINT(S) to

the Administrative Judge must be sent to the Compliance Officer as

referenced below.

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 (P1199)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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. 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.

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:

March 9, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date

1On 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 .

2The Commission need not decide whether the previous decision erred

in finding a violation of term (B) of the settlement since the record

supports the finding in the previous decision that the agency also

breached term (D) of the settlement. The Office of Personnel Management

investigation referred to in the previous decision took place from June 9,

1996 to June 22, 1996, after the settlement.