05980954
06-04-1999
William J. Buckingham, Appellant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.
William J. Buckingham v. Department of Labor
05980954
June 4, 1999
William J. Buckingham, )
Appellant, )
)
v. ) Request No. 05980954
) Appeal No. 01982535
Alexis M. Herman, ) Agency No. 7-09-117
Secretary, )
Department of Labor, )
Agency. )
______________________________)
GRANTING REQUEST FOR RECONSIDERATION
On July 11, 1998, William J. Buckingham (appellant) initiated a request
to the Equal Employment Opportunity Commission (EEOC) to reconsider
the decision in William J. Buckingham v. Alexis M. Herman, Secretary,
Department of Labor, EEOC Appeal No. 01982535 (April 21, 1998).<0> A
request for reconsideration must be filed within 30 days of receipt of
the previous appellate decision. 29 C.F.R. �1614.407(b). A request is
timely filed if delivered in person or postmarked before the expiration
of the applicable filing period. 29 C.F.R. �1614.604(b). In this case,
it is apparent that appellant received the prior decision more than 30
days prior to his request for reconsideration. Therefore, it is the
decision of the Commission to deny appellant's request. The Commission
will, however, reconsider the prior decision on its own motion. See 29
C.F.R. �1614.407(a).
BACKGROUND
Appellant filed a formal complaint in June 1997 alleging discrimination
based on age (53) and sex (male) when he was non-selected for a number
of Wage Hour Investigator positions located in the agency's New York,
Chicago, Denver, and Dallas Regions. In a final decision (FAD) dated
January 7, 1998, the agency accepted appellant's two non-selections for
vacancies in the Chicago Region, but dismissed his allegations regarding
the non-selections in the other three regions. Specifically, the agency
found that these allegations did not state a claim insofar as appellant
had not identified either the positions' vacancy numbers or the dates
on which he had applied for them. Appellant thereafter appealed the
dismissal of those allegations. The FAD also stated that, because 180
days had elapsed since appellant had filed his complaint, he had the right
to request an immediate administrative hearing. Appellant proceeded to
exercise that right with the belief that he would be able to raise all of
his allegations, including those that had been dismissed, at the hearing.
For that reason, appellant requested that his appeal of the FAD be
withdrawn. Thereafter, appellant's appeal was administratively closed.
In the interim, appellant's complaint was assigned to an administrative
judge (AJ). During a pre-hearing conference in June 1998, the AJ
informed the parties that the issue to be heard would be limited to
appellant's non-selections for the two vacancies in the Chicago Region.
Appellant objected to this characterization, explaining that he would
not have withdrawn his appeal of the FAD had he known that all of his
allegations would not be heard. For that reason, the AJ remanded the
complaint to the agency pending the outcome of appellant's request to
have his appeal of the FAD reinstated.
ANALYSIS AND FINDINGS
As noted above, the Commission has decided to reopen the prior decision
on its own motion. In taking this action, the Commission finds that,
as a matter of equity, appellant is entitled to a ruling on the agency's
FAD.<0> In so finding, we understand how appellant may have mistakenly
believed that, if he requested a hearing, all of the allegations he
had raised would be heard. Accordingly, we shall now address the FAD's
dismissal of the allegations pertaining to the non-selections in the
New York, Denver, and Dallas Regions.
In considering the agency's dismissal, we initially agree that appellant
provided few specifics regarding the non-selections in question, such
as dates, vacancy numbers, or documentation related to the application
process. We also note, however, that it does not appear that the agency,
prior to dismissing these allegations, made any attempt to specify the
vacancies to which appellant was referring. Therefore, the Commission
finds that appellant's complaint should be remanded to the agency so
that the parties can attempt to identify the vacancies in the New York,
Dallas, and Denver Regions.
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request is
untimely, but reopens the prior decision on its own motion. Because this
decision addresses the FAD for the first time, reconsideration rights
are being provided regarding the portion of this decision that addresses
the FAD.
ORDER
Within thirty (30) days of the date this decision becomes final, the
agency shall contact appellant and attempt to identify the Wage Hour
Investigator vacancies for which he applied in the New York, Dallas,
and Denver Regions. The agency shall request that appellant identify
the approximate dates on which he applied for these vacancies and any
individuals he spoke with in the respective offices. The agency shall
also request that appellant provide any documentation associated with the
vacancies, including applications and letters of rejection. The agency
shall then use this information to identify, to the extent possible,
the vacancies in question. In the event any vacancies are identified,
the agency shall determine which of them are procedurally viable and
issue a decision dismissing those that it determines are procedurally
defective. The agency shall thereafter forward appellant's complaint
for an administrative hearing which shall encompass the two vacancies
in the Chicago Region as well as those vacancies found procedurally
viable. In the event the parties are unable to identify some, or all,
of the vacancies in those three regions, the agency shall issue a final
decision dismissing the allegation(s) in question. These actions shall
be completed within sixty (60) calendar days of the date this decision
becomes final.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include evidence that the agency has taken
the ordered actions.
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.
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 (R0993)
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. 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
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:
June 4, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
01 What appellant is requesting is the reinstatement of an appeal that
was administratively closed by the prior decision. Because appellant is
asking, in effect, that we set aside the prior decision, we have treated
his request as a request for reconsideration of that decision.
02 The agency does not object to this conclusion, and the record
contains a letter dated October 7, 1998, in which the agency requested
that the Commission reinstate appellant's appeal of the FAD.