05a50756
07-28-2005
Twylah Jagielo, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Twylah Jagielo v. Department of Commerce
05A50756
July 28, 2005
.
Twylah Jagielo,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Request No. 05A50756
Appeal No. 01A44045
Agency No. 01-53-00127
Hearing No. 100-A3-7235X
DENIAL
Both Twylah Jagielo (complainant) and the Department of Commerce (agency)
timely requested reconsideration of the decision in Twylah Jagielo
v. Department of Commerce, EEOC Appeal No. 01A44045 (March 15, 2005).
EEOC Regulations provide that the Commission may, in its discretion,
grant a request to reconsider any previous Commission decision where the
requesting party demonstrates that: (1) the appellate decision involved
a clearly erroneous interpretation of material fact or law; or (2)
the appellate decision will have a substantial impact on the policies,
practices, or operations of the agency. See 29 C.F.R. � 1614.405(b).
In her underlying complaint, complainant alleged she was discriminated
against in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq., on the bases of her
race (Hispanic)<1>, national origin (Hispanic), sex, and in reprisal
for prior protected EEO activity. An EEOC Administrative Judge (AJ)
issued a decision without a hearing, adopting the agency's motion for
summary judgment in its entirety. The agency's final order adopted
the AJ's decision finding no discrimination. On appeal, the Commission
vacated the agency's final order and remanded the matter for a hearing,
finding that the AJ erred in issuing a decision without a hearing.
The Commission concluded that, viewing the evidence in a light most
favorable to complainant, there were genuine issues of material fact in
dispute which required further development of the record.
In its request for reconsideration, the agency makes several arguments
already raised on appeal and contends that the Commission erred in
remanding the complaint for a hearing because complainant failed to
show that she was subjected to any adverse employment actions. We find,
however, that these arguments were fully considered on appeal and after
reconsidering 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.
We note that in complainant's request for reconsideration she asserts, for
the first time, that the agency's report of investigation was "untimely,
flawed, and incomplete." Again, we find that this request does not meet
the criteria of 29 C.F.R. � 1614.405(b), and we remind both complainant
and the agency that a �request for reconsideration is not a second appeal
to the Commission.� Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614, at 9-17 (rev. November 9, 1999). The decision
in EEOC Appeal No. 01A44045 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of the
Commission on this request. The complaint is remanded to the agency for
further processing in accordance with this decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC's Washington
Field Office the request for a hearing within fifteen (15) calendar days
of the date this decision becomes final. The agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on
the complaint in accordance with 29 C.F.R. � 1614.109, and the agency
shall issue a final action in accordance with 29 C.F.R. �1614.110.
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.
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
July 28, 2005
__________________
Date
1 In her request for reconsideration,
complainant states that her race was previously incorrectly identified
as African-American.