05970548
11-20-1998
Rita L. Perry, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation,) Agency.
Rita L. Perry v. Department of Transportation
05970548
November 20, 1998
Rita L. Perry, )
Appellant, )
)
v. ) Request No. 05970548
) Appeal No. 01964170
Rodney E. Slater, ) Agency No. 96-068
Secretary, )
Department of Transportation,)
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On February 26, 1997, the Department of Transportation (agency) timely
initiated a request to the Equal Employment Opportunity Commission
(EEOC or Commission) to reconsider the decision in Rita L. Perry
v. Department of Transportation, EEOC Appeal No. 01964170 (January
23, 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
misapplication of established policy, 29 C.F.R. �1614.407(c)(2); or the
previous decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3).
The previous decision vacated the agency's dismissal of three issues
of appellant's complaint for failure to contact an EEO Counselor in
a timely fashion, and reversed the dismissal of a fourth issue citing
an action which had only been proposed, but ultimately was effected.
The agency was ordered to process Issue 4, pertaining to appellant's
proposed removal, then actual, removal. The agency further was ordered
to consider whether the remaining three issues, which dealt with (1)
appellant's placement on a performance improvement plan (PIP), (2) the
agency's failure to provide training under the PIP, and (3) termination
of certain responsibilities and removal of professional certificates,
constituted a continuing violation for purposes of waiving the 45-day
time limitation for EEO Counselor contact.
In its request for reconsideration, the agency states that it has
investigated the matter further, and has informed appellant that it
has accepted Issues 2-4 for processing.<1> The agency further states
that Issue 1 was the subject of a previous EEO complaint which was
accepted for investigation, and provides documentation including a copy
of that complaint (DOT-95-0295, filed April 4, 1995), which it states was
previously unavailable. Given that the agency has provided no explanation
as to why the documentation submitted in support of its request was
previously unavailable, when the documentation existed at the time of
the appeal and plainly was known to the agency, the Commission finds that
the agency's request fails to meet the requirements for reconsideration,
and is DENIED.
The Commission nonetheless finds it appropriate to reconsider the matter
on its own motion. The Commission's regulations provide that an agency
shall dismiss a complaint or portion of a complaint that "states the
same claim that is pending before or has been decided by the agency or
Commission...." 29 C.F.R. �1614.107(a). Accordingly, the Commission
finds that Allegation 1, regarding appellant's placement on a PIP, was
properly dismissed, albeit on different grounds than originally asserted
by the agency.
Upon 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 any of the criteria of 29 C.F.R. �1614.407(c).
Accordingly, it is the decision of the Commission to DENY the agency's
request for reconsideration. Having reconsidered the matter on its
own motion, however, the Commission MODIFIES the decision in Appeal
No. 01964170 to reflect that the final agency decision is affirmed with
regard to Allegation 1, pertaining to appellant's placement on a PIP
and, as modified, AFFIRMS that decision. There is no further right
of administrative appeal from the decision of the Commission on this
request for reconsideration.
ORDER
The agency is ORDERED to conduct a supplemental investigation which
shall include the following action:
The agency shall determine whether Issues 2 through 4 constitute a
continuing violation.
If the agency determines that a continuing violation exists, it shall
issue a notice of processing with regard to Issues 2 through 4. If the
agency determines that such a violation does not exist, it shall issue a
final agency decision dismissing Issues 2 and 3 and a notice of processing
with regard to Issue 4. These actions must be complete within sixty
(60) calendar days of the date this decision becomes final. A copy of
the final agency decision and/or notice of processing must be submitted
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
appellant. If the agency does not comply with the Commission's order,
appellant may petition the Commission for enforcement of the order.
29 C.F.R. �1614.503 (a). 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, 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 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 (Q0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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 EIGHTY (180) CALENDARS 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. 20, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat
1The agency's request for reconsideration does not include a copy of
the acceptance notice.