05970166
10-07-1998
Gerald F. Hummel, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Gerald F. Hummel v. Department of Defense
05970166
October 7, 1998
Gerald F. Hummel, )
Appellant, ) Request No. 05970166
) Appeal No. 01960208
v. ) Agency No. DFAS-IN-00IN-95-024
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Finance & Accounting )
Service), )
Agency. )
______________________________)
DENIAL OF RECONSIDERATION
On December 4, 1996, the Department of Defense (hereinafter referred
to as the agency), timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision in
Gerald F. Hummel v. William J. Perry, Secretary, Department of Defense,
EEOC Appeal No. 01960208 (October 30, 1996) received by the agency on
November 4, 1996.<1> EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which 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 a 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 agency's request to reconsider, the previous
decision, and the entire record, the Commission finds that the agency'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 request.<2> The decision in
EEOC Appeal No. 01960208 (October 30, 1996) remains the Commission's final
decision.<3> The agency, if it has not already done so, will comply with
the previous decision's Order as restated below. There is no further
right of administrative appeal from a decision of the Commission on a
request to reconsider.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation 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 acknowledgment 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 (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 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
OCT 7, 1998
___________ _________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1The Commission's Office of Federal Operations erroneously docketed
a letter written by appellant as a request to reconsider. The letter,
dated November 21, 1996, was addressed to the agency's EEO Director and
concerned the processing of his complaint by the agency. Therefore,
we find that the agency's December 4, 1996 request to reconsider was
the only such request filed in this matter.
2In its request for reconsideration, the agency contends that appellant's
appeal of its September 10, 1995 final decision concerning allegation (1)
did not involve allegation (2), because that allegation was not dismissed
until November 1995. The record indicates that appellant, on December
8, 1995, did file an appeal of the agency's final decision concerning
allegation (2). Upon receipt, the Commission combined the two appeals.
According to the agency, it was unaware that appellant had ever filed
an appeal concerning allegation (2). Therefore, the agency maintains
that it had no opportunity to address the issue in its appellate brief.
The Commission notes that the agency did have the opportunity to submit
its arguments concerning allegation (2) along with its reconsideration
request, but it did not do so. We also find that the case file contained
sufficient information to allow for a determination of the procedural
issues raised by appellant's appeal of allegation (2).
3The record contains a letter dated February 20, 1997 from the agency
to the Office of Federal Operations. The letter indicates that, in
compliance with the previous decision, the agency processed allegation
(2) pursuant to 29 C.F.R. �1614.108. The agency also indicated that
allegation (2) was consolidated, for investigation, with other complaints
filed by appellant that raised the issue of continuous harassment.