05970362
01-08-1999
Victoria Franke, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Victoria Franke v. Department of Transportation
05970362
January 8, 1999
Victoria Franke, )
Appellant, )
)
v. ) Request No. 05970362
) Appeal No. 01963430
Rodney E. Slater, ) Agency No. 96-052
Secretary, )
Department of Transportation, )
Agency. )
)
DENIAL OF REQUEST TO RECONSIDER
On January 10, 1997, the appellant timely initiated a request to the
Equal Employment Opportunity Commission (Commission) to reconsider
the decision in Franke v. Department of Transportation, EEOC Appeal
No. 01963430 (December 10, 1996). The decision was received at the
appellant's address on December 14, 1996. EEOC regulations provide that
the Commission may, in its discretion, reconsider any previous decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must
submit written argument or evidence that 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); and 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 the appellant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
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 appellant's request.
The decision in EEOC Appeal No. 01963430 remains the Commission's final
decision.
ORDER
The agency shall conduct an inquiry sufficient to enable it to make a
reasoned decision as to whether allegations 5 - 10 were timely raised
with an EEO Counselor. The agency shall specifically consider whether
allegations 5 - 10 were timely raised pursuant to the continuing violation
theory. The agency, within 30 days of receipt of this decision, shall
issue a letter to appellant accepting allegations 5 - 10 for investigation
and/or shall issue a final decision dismissing allegations 5 - 10. A
copy of the agency's letter to appellant accepting allegations 5 - 10 for
investigation and/or a copy of the final decision dismissing allegations
5 - 10 must be sent to the Compliance Officer as referenced herein.
The agency shall contact appellant to clarify allegation 13 to determine
if appellant is alleging that she was ultimately not allowed to apply in a
timely fashion for Recruitment Bulletin No. 95-02. Within 30 days of the
date this decision becomes final, the agency shall either issue a letter
to appellant accepting allegation 13 for investigation or shall issue a
final decision dismissing allegation 13. A copy of the agency's letter
to appellant accepting allegation 13 for investigation or a copy of the
final decision dismissing allegation 13 must be sent to the Compliance
Officer as referenced herein.
The agency shall process allegations 11 and 15 in accordance with 29
C.F.R. s 1614.108. The agency shall acknowledge to the appellant that it
has received allegations 11 and 15 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
acknowledgement 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.
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:
JAN 8, 1999
Date
Frances M. Hart
Executive Officer
Executive Secretariat