05a00302
07-25-2000
Columbus L. Johnson, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Columbus L. Johnson, )
Complainant, )
) Request No. 05A00302
v. ) Appeal No. 01984695
) Agency No. F-97-4918
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
)
DENIAL OF REQUESTS FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider that portion of the decision
in Columbus L. Johnson v. Department of Justice, EEOC Appeal No. 01984695
(October 15, 1999),<1> which reversed the final agency decision on the
grounds that a claim was like or related to a matter that was brought
to the attention of an EEO Counselor. The complainant also initiated
a request to reconsider that portion of our previous decision which
affirmed the final agency decision's dismissal of claims 2 and 3 on
the grounds of failure to contact an EEO Counselor in a timely manner.
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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.405(b)).
After a review of both the agency's and complainant's respective 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. With regard to the agency's argument that complainant filed
his appeal in an untimely manner, we find that evidence in support of
this position should have been presented when the Commission previously
reviewed this matter rather than at this stage of the review process.
As for the claim that was previously remanded to the agency for
further processing, we find that it is clear that this claim involving
complainant's performance appraisal is related to the second claim set
forth in the complaint. Our previous affirmance of the agency's dismissal
of the second claim does not negate the validity of the claim at issue in
this request for reconsideration. With respect to the argument submitted
by complainant, he submits information that should have been presented
when the Commission previously reviewed this matter rather than at this
stage of the review process. Therefore, the decision of the Commission
in EEOC Appeal No. 01984695 remains the Commission's final decision.
There is no further right of administrative appeal from a decision of
the Commission on a request for reconsideration.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). 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. The agency
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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.409).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(Q0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court WITHIN NINETY (90) CALENDAR
DAYS from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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:
July 25, 2000
_______________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative,
and the agency on:
DATE Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.