Rita L. Perry, Appellant,v.Rodney E. Slater, Secretary, Department of Transportation,) Agency.

Equal Employment Opportunity CommissionNov 20, 1998
05970548 (E.E.O.C. Nov. 20, 1998)

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.