05980612
11-04-1999
Terry L. Boyd, Sr., Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Terry L. Boyd, Sr. v. Department of the Interior
05980612
November 4, 1999
Terry L. Boyd, Sr., )
Appellant, )
) Request No. 05980612
v. ) Appeal No. 01974785
) Agency No. BIA-96-035
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
__________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On April 10, 1998, Terry L. Boyd, Sr., (the appellant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Terry L. Boyd, Sr., v. Bruce Babbitt,
Secretary, Department of the Interior, EEOC Appeal No. 01974785
(March 13, 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 a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); or the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3).
After a review of appellant's request to reconsider, the agency's
response, the previous decision, and the entire record, the Commission
finds that appellant's request fails to meet the criteria of 29
C.F.R. �1614.407(c), and it is the decision of the Commission to deny the
request. The decision in EEOC Appeal No. 01974785 (March 13, 1998) remains
the Commission's final decision. The agency will comply with the ORDER
which is restated below. There is no further right of administrative
appeal from a decision of the Commission on a request to reconsider.
ORDER (E1092)
The agency is ORDERED to take the following actions:
(1). Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall undertake a supplemental investigation to
determine whether appellant raised allegation (1) with an EEO counselor
and was improperly advised to pursue the allegation through another
administrative appeal process. Specifically, the agency shall request
from appellant the name, date, and circumstances of his purported
contact. Thereafter, the agency shall obtain a statement from the
identified official, including the date of contact, if any, and what
was discussed, including any directions given.
(2). The agency shall also determine whether allegation (1) is like
or related to the matters that were brought to the attention of the
EEO counselor during the counseling on the other allegations in his
complaint.
(3). Within thirty (30) calendar days of the date this decision becomes
final the agency shall issue a new final decision or notice of processing
regarding allegation (1). A copy of the new final decision or notice of
processing must be sent to the Compliance Officer as referenced below.
(4). The agency is ORDERED to process the remanded allegations (2) and (3)
in accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to
the appellant that it has received the remanded allegations within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to appellant a copy of the investigative file and also shall
notify appellant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless
the matter is otherwise resolved prior to that time. If the appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
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 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(c) (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 APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (Q0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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:
Nov. 4, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat