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).