05a50695
04-22-2005
Spencer C. Watson, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Spencer C. Watson v. Department of Transportation
05A50695
04-22-05
.
Spencer C. Watson,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Request No. 05A50695
Appeal No. 01A50289
Agency No. 2-04-4033
DECISION ON REQUEST TO RECONSIDER
On March 23, 2005, the Department of Transportation (agency) initiated a
request to the Equal Employment Opportunity Commission to reconsider the
decision in Spencer C. Watson v. Norman Y. Mineta, Secretary, Department
of Transportation, EEOC Appeal No. 01A50289 (February 25, 2005).
EEOC regulations provide that the Commission may, in its 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. 29 C.F.R. �
1614.405(b).
Complainant claimed that, based on age (DOB 5/7/1943), management
was unresponsive and delayed his promotion until November 2, 2003.
The agency's final decision dismissed the complaint for failure to
state a claim and as moot. In our previous decision, we found that
the complaint stated a claim and remanded the matter to the agency for
continued processing. In its request, the agency contended that, because
it had completed its processing, i.e., conducted the investigation,
provided complainant an opportunity to request a hearing or final
decision, and addressed the merits of the complaint in a footnote,
it did not understand the Commission's decision returning the matter.
The agency's request reveals its confusion between an action on a
procedural matter and an action on the merits of a matter. In applying
any of the subsections of 29 C.F.R. � 1614.107, an agency elects
to dismiss the complaint on procedural grounds, notwithstanding the
fact that it may have completed an investigation. Having utilized a
procedural dismissal, the Commission must consider whether the agency's
final decision is in accord with the cited provision. Here, the agency
dismissed the complaint on the grounds that it failed to state a claim
and/or as moot, and it is that determination that we reviewed in our
previous decision. That the agency addressed the merits of the complaint
in a footnote is insufficient.<1> See 29 C.F.R. � 1614.110(b).
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01A50289 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on a request for reconsideration.
ORDER (E0900)
To the extent that it has not already done so, the agency is ordered
to process the remanded claim in accordance with the Commission's
regulations. The agency shall acknowledge to the complainant that it has
received the remanded claims within thirty (30) calendar days of the date
this decision becomes final. If the agency has not provided complainant a
copy of the investigative file and notified him of the appropriate rights,
it shall issue to complainant a copy of the investigative file and also
shall notify complainant 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 complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___04-22-05_______________
Date
1Upon remand and compliance with our Order to the extent that it has
not already done so, the agency can elect to address the complaint on
its merits. Id.