05A20609_r
07-10-2002
Barry Benardout, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Barry Benardout v. Department of Commerce
05A20609
July 10, 2002
.
Barry Benardout,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Request No. 05A20609
Appeal No. 01A01439
Agency Nos. 99-54-00339, 99-54-00765
DENIAL OF REQUEST FOR RECONSIDERATION
Both complainant and the agency timely initiated requests to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Barry Benardout v. Department of Commerce, EEOC Appeal
No. 01A01439 (February 27, 2002). 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).
Complainant requested that the Commission award attorney's fees for his
initial appeal. The agency contends that the agreement was rendered void
by the lack of approval from their Office of General Counsel. Even if
the agreement is considered valid, the agency notes that it enforced
most of the agreement's provisions, and cannot provide any further relief
because complainant accepted disability retirement in May 2000. Further,
it notes that complainant never sought counseling with a therapist,
or otherwise requested reimbursement for seeking treatment.
No fees were granted in the prior decision's order, and complainant
presented insufficient evidence to warrant such an award. The Commission
also adequately addressed the agency's apparent authority to enter into
the settlement agreement, and finds no reason to revisit the issue.
With regard to complainant's retirement and the payment of his therapist,
the Commission finds no grounds for the agency's failure to comply with
the agreement while complainant was employed.
After a review of the parties' requests for reconsideration, the previous
decision, and the entire record, the Commission finds that the requests
fail to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the requests. The decision in EEOC
Appeal No. 01A01439 remains the Commission's final decision; its order
is reprinted below. There is no further right of administrative appeal
on the decision of the Commission on this request for reconsideration.
ORDER
Within 30 calendar days of the date this decision becomes final, the
agency must:
Begin performing its obligations under the March 31, 1999 settlement
agreement, including but not limited to paying for complainant's visits
to a therapist �who can handle occupational issues.� In keeping with
the agreement, the agency must cease all processing of the underlying
claims settled by the March 31, 1999 agreement and notify the EEOC AJ
that it is ceasing its processing [of] the settled claims.
Send complainant a letter notifying him of the agency's intention to
comply with the settlement agreement.
Send complainant a copy of a letter notifying the EEOC AJ that the agency
is ceasing processing the settled matter.
Send a copy of the letters sent to the complainant and the AJ to the
Compliance Officer referenced herein.
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 10, 2002
__________________
Date