01975263
10-27-1998
Timothy W. Boykin v. Department of Transportation
01975263
October 27, 1998
Timothy W. Boykin, )
Appellant, )
)
v. ) Appeal No. 01975263
) Agency No. 94-0160
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated May 15, 1997, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b). The Commission accepts the appellant's
appeal in accordance with EEOC Order No. 960, as amended.
After a review of the record, the Commission finds that the appellant's
April 5, 1993 EEO counselor contact was untimely regarding the allegations
designated 2 and 4 through 12 in the final agency decision.
However, the Commission agrees with the appellant that the final agency
decision fails to address allegations designated 2 and 8 in his August 3,
1993 complaint. Because these allegations concern actions which allegedly
occurred on March 3 and 5, 1993, the Commission finds that the appellant
timely contacted an EEO counselor regarding these allegations.
The Commission also finds that the appellant's EEO counselor contact was
timely regarding the allegation designated as allegation 3 in the final
agency decision. That allegation involves an order allegedly given on
March 3, 1993.
The Commission further observes that all of the timely raised allegations
concern matters arising from a March 3, 1993 incident which culminated
in the issuance of a suspension.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of allegations designated 2 and 4 through 12 in the final
agency decision; REVERSES the agency's dismissal of allegation designated
as allegation 3 in the final agency decision; REVERSES any implied
dismissal of allegations designated 2 and 8 in the appellant's August 3,
1993 complaint; and REMANDS the allegation designated as allegation 3 in
the final agency decision and the allegations designated 2 and 8 in the
appellant's August 3, 1993 complaint for processing as ORDERED below.<1>
ORDER
1. The agency is ORDERED to request that the Commission appoint an
administrative judge to conduct a hearing on the appellant's complaint.
2. The agency shall send a copy of the request letter to the appellant
and to the Compliance Officer as reference below.
3. The agency shall complete the actions required by paragraphs 1 and 2
of this Order within 30 calendar days of the date this decison becomes
final.
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� (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 RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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. If you
file a request to reconsider and also file a civil action, 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:
October 27, 1998
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations
1The appellant already has requested a hearing on his complaint. The
matter was remanded to the agency by the Administrative Judge for
acceptance or dismissal of the allegations addressed above.