Artimese Epps, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionSep 13, 2002
05A10387 (E.E.O.C. Sep. 13, 2002)

05A10387

09-13-2002

Artimese Epps, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.


Artimese Epps v. Department of Agriculture

05A10387

September 13, 2002

.

Artimese Epps,

Complainant,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Request No. 05A10387

Appeal No. 01A10188

Agency No. 960820

DECISION ON REQUEST FOR RECONSIDERATION

Artimese Epps (complainant) timely initiated a request to the Equal

Employment Opportunity Commission (EEOC or Commission) to reconsider

the decision in Artimese Epps v. Dep't of Agriculture, EEOC Appeal

No. 01A10188 (January 25, 2001). EEOC Regulations provide that the

Commission may, in its discretion, 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). For the reasons set forth herein, complainant's request

is granted.

BACKGROUND

Complainant filed an EEO complaint alleging that the agency discriminated

against her based on race (African-American) and reprisal (prior Title

VII-related activity) when it failed to select her for a GS-6, Accounting

Technician position in June 1996.<1> The complaint was investigated and

complainant was informed of her right to elect a hearing before an EEOC

Administrative Judge (AJ) or an immediate final agency decision (FAD).

Complainant initially requested a hearing, but later withdrew said request

and opted for an immediate FAD. The agency issued a FAD dated August 4,

2000, finding no discrimination.

Our previous decision affirmed the FAD. This request for reconsideration

by complainant followed. Complainant, in her request, stated that the

instant complaint should have been processed as a part of her class

complaint because it concerns the denial of a promotion.

CONCLUSION

As discussed above, the Commission may, in its discretion, reconsider

any previous decision when the party requesting reconsideration submits

written argument or evidence which tends to establish that any of the

criteria of 29 C.F.R. 1614.405 is met. After a careful review of the

record herein, the Commission hereby reconsiders the previous decision

and concludes that we should not have addressed complainant's individual

complaint. The decision in EEOC Appeal No. 01A10188 is hereby vacated

and the matter is remanded to the agency to be subsumed into the class

complaint at issue in Artimese Epps, et al. v. Dep't of Agriculture,

EEOC Request No. 05A00627. The agency shall comply with the provisions

of the Order set forth below.

ORDER

The agency is ordered to process the remanded claim as part of the class

complaint at issue in EEOC Request No. 05A00627 (agency number 960326),

within 45 calendar days of the date this decision becomes final.

Evidence of actions in compliance with this order 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.

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:

______________________________

Frances M. Hart

Executive Officer

Executive Secretariat

September 13, 2002

__________________

Date

1Previously, in December 1995, complainant and three other agency

employees filed a complaint, on the behalf of a class, against the agency

for discriminatory employment practices. An EEOC Administrative Judge

(AJ) issued a decision finding that the proposed class should not be

certified. The agency accepted the AJ's decision as its final action.

The class agents appealed. In Artimese Epps, et al. v. Dep't of

Agriculture, EEOC Appeal No. 01984006 (March 20, 2000), we certified the

class complaint as it pertains to the denial of promotions and remanded

the matter for discovery. In addition, we ordered the agency to process

all individual complaints from the class agents that do not concern the

denial of promotion. The agency filed a request for reconsideration,

which we denied in Artimese Epps, et al. v. Dep't of Agriculture, EEOC

Request No. 05A00627 (January 4, 2002).