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.