Winzoirv.Durr, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionAug 29, 2000
05980710 (E.E.O.C. Aug. 29, 2000)

05980710

08-29-2000

Winzoir V. Durr, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Winzoir V. Durr v. Department of the Army

05980710

August 29, 2000

Winzoir V. Durr, )

Complainant, ) Request No. 05980710

) Appeal No. 01972395

v. )

)

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

____________________________________)

DECISION

The Department of the Army (hereinafter referred to as the agency)

timely initiated a request to the Equal Employment Opportunity Commission

(Commission) to reconsider the decision in Winzoir V. Durr v. Robert

M. Walker, Acting Secretary, Department of the Army, EEOC Appeal

No. 01972395 (April 21, 1999).<1> EEOC Regulations provide that the

Commissioners may, in their discretion, reconsider any previous decision

where the party demonstrates that: (1). the previous decision involved

a clearly erroneous interpretation of material fact or law; or (2). the

decision will have a substantial impact on the policies, practices,

or operation of the agency. 64 Fed.Reg. 37,644, 37,659 (1999) (to be

codified and hereinafter referred to as 29 C.F.R. �1614.405(b)). For the

reasons set forth herein, the agency's request is denied. The Commission,

however, reconsiders the previous decision on its own motion.

ISSUE PRESENTED

The issue herein is whether the Commission has jurisdiction to consider

the underlying dismissal of complainant's complaint.

BACKGROUND

The facts in this case were adequately set forth in the previous decision,

and will be repeated herein only in pertinent part. A review of the

record reveals that complainant filed a formal EEO complaint in October

1996, alleging that he was discriminated against on the bases of his race

(black), sex (male), and reprisal (participation in an Inspector General

investigation) with regard to his working conditions. In addition,

complainant stated that he received a notice of proposed removal.

The agency dismissed the issue concerning complainant's working conditions

for failure to timely contact an EEO Counselor, and the remaining issue as

concerning a proposal to take action. The previous decision affirmed the

agency's dismissal of the issue concerning the proposed removal, stating

that the matter merged with a separate complaint filed by complainant

regarding the actual removal. The previous decision also noted that

the agency properly dismissed reprisal as a basis for the complaint, as

there was no evidence that complainant engaged in protected EEO activity.

The previous decision remanded the issue concerning complainant's working

conditions for a supplemental investigation.

In its request for reconsideration, the agency noted that, prior to the

issuance of the previous decision, the parties entered into a settlement

agreement in connection with complainant's appeal of the removal action to

the Merit Systems Protection Board (MSPB). Pursuant thereto, complainant

agreed, among other things, to withdraw all pending discrimination

complaints concerning matters which arose prior to the execution of the

agreement.<2> The agency submitted a copy of the July 1997 settlement

agreement in support of its assertions. Complainant did not submit any

arguments in response to the agency's request.

ANALYSIS AND FINDINGS

As discussed above, the Commission may, in its discretion, reconsider

any previous decision when the party requesting reconsideration submits

written argument which tends to establish that at least one of the

criteria of 29 C.F.R. �1614.405(b) is met. In order for a case

to be reconsidered, the request must contain specific information

which meets the requirements of this regulation. It should be noted

that the Commission's scope of review on a request to reconsider is

limited. Lopez v. Department of the Air Force, EEOC Request No. 05890749

(September 28, 1989). After a careful review of the previous decision,

the agency's request for reconsideration, and the entire record, the

Commission finds that the agency's request fails to meet the criteria

in 29 C.F.R. �1614.405(b), and the Commission denies the request.

Nevertheless, the Commission will reconsider the previous decision,

on its own motion. As stated, in its request for reconsideration,

the agency submitted a copy of a settlement agreement which the

parties entered into in July 1997 in connection with complainant's MSPB

appeal. Pursuant thereto, complainant agreed to withdraw all pending

discrimination complaints concerning actions which occurred prior to the

execution of the agreement. Therefore, given that the Commission lacked

jurisdiction to consider the underlying appeal, the previous decision

is hereby VACATED.

CONCLUSION

After a review of the agency's request for reconsideration, the previous

decision, and the entire record, the Commission hereby reconsiders the

previous decision on its own motion pursuant to 29 C.F.R. � 1614.405(b).

The decision of the Commission in EEOC Appeal No. 01972395 (April 21,

1999) is VACATED. The agency need not comply with the Order set forth in

the previous decision. There is no further right of administrative appeal

on a decision of the Commission on this request for reconsideration.

STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)

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:

_08-29-00________ __________________________________

DATE Carlton M. Hadden, 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 of mailing. I certify

that the decision was mailed to claimant, claimant'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 settlement agreement also provided, in pertinent part, that the

agency would cancel the removal action, and reinstate complainant for

a specified period of time.