05970613
11-05-1998
Pauline M. Velez, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, and F. Whitten Peters, Acting Secretary, Department of the Air Force, Agencies.
Pauline M. Velez v. Department of Veterans Affairs and Department of
the Air Force
05970613
November 5, 1998
Pauline M. Velez, )
Appellant, )
) Request No. 05970613
v. ) Appeal No. 01961480
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
)
and )
)
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agencies. )
)
DENIAL OF RECONSIDERATION
On March 12, 1997, the Department of Veterans Affairs (hereinafter
referred to as the agency) initiated a request to the Equal Employment
Opportunity Commission (Commission) to reconsider the decision in
Pauline M. Velez v. Jesse Brown, Secretary, Department of Veterans
Affairs, and Sheila E. Widnall, Secretary, Department of the Air Force,
EEOC Appeal No. 01961480 (February 6, 1997), received by the agency
on February 12, 1997. 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 for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request does not meet the criteria in 29 C.F.R. �1614.407(c). Therefore,
it is the decision of the Commission to deny the agency's request.
The decision in EEOC Appeal No. 01961480 (February 6, 1997) remains
the Commission's final decision. The agency shall comply with the
provisions of the Order, as modified below. There is no further right
of administrative appeal on a decision of the Commission on this Request
for Reconsideration.
ORDER
The agencies are ORDERED to process the remanded allegations in
accordance with 29 C.F.R. �1614.108. The agencies shall acknowledge to
the appellant that they have received the remanded allegations within
thirty (30) calendar days of the date this decision becomes final.
The agencies shall, in cooperation, develop a memorandum of understanding
setting forth the parameters of the investigation, and each agency's
responsibility therefor. A copy of the memorandum of understanding shall
be provided to the appellant within thirty (30) calendar days of the date
this decision becomes final. The agencies shall share any information
obtained during the investigation with each other, and with appellant.
The agencies 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 appellant
requests a hearing, the Administrative Judge shall have the authority,
within his or her discretion, to order the agencies to participate in a
joint hearing. The agencies shall issue a joint final decision, unless
an alternative arrangement regarding the issuance of the final decision
has been set forth in the memorandum of understanding, within sixty (60)
days of receipt of the Administrative Judge's recommended decision or
appellant's request for a final decision without a hearing. A copy of
the agencies' letter of acknowledgement to appellant and a copy of the
memorandum of understanding 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.
STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION
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:
NOV 5, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat