0520150374
10-01-2015
Daisy B.,1 Complainant, v. Dr. Ernest Moniz, Secretary, Department of Energy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Daisy B.,1
Complainant,
v.
Dr. Ernest Moniz,
Secretary,
Department of Energy,
Agency.
Request No. 0520150374
Appeal No. 0120123346
Hearing No. 570-2011-00896X
Agency No. 110003HQPA
DECISION ON REQUEST FOR RECONSIDERATION
The Agency requested reconsideration of the decision in EEOC Appeal No. 0120123346 (April 2, 2015). 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).
By regulation, requests must be filed within thirty (30) calendar days after the party receives the previous decision. 29 C.F.R. � 1614.405(b). A document is timely if it is received or postmarked before the expiration of the applicable filing period or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. 29 C.F.R. � 1614.604(b).
It is noted that the previous decision included a Certificate of Mailing indicating that, for purposes of timeliness, the Commission will presume that the decision was received within five (5) calendar days of the date on which it was mailed, April 2, 2015. The Agency is presumed to have received the previous decision no later than April 7, 2015. Thirty days from that date is May 7, 2015. As evidenced by the certificate of mailing provided by the Agency, the Agency mailed its request on May 12, 2015, which was beyond the 30-day limit set by regulation. No reason was provided for the delay.
Nonetheless, upon review, we find that the Order set forth in the previous decision needs to be modified. The previous decision found that the Equal Employment Opportunity Administrative Judge's (AJ) decision to grant summary judgment was improper and remanded the matter for a hearing because "too many issues will rest on the credibility of the witnesses." Thus we are modifying the previous Order to reflect that the matter is remanded for a hearing on the complaint and, if needed, compensatory damages and attorney's fees may be considered.
For the foregoing reasons, the Agency's request is denied. The decision in EEOC Appeal No. 0120123346 is modified as set forth below. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency is directed to comply with the Order set forth below.
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC Houston District Office Hearings Unit within fifteen (15) calendar days of the date this decision becomes final for the purposes of holding a hearing on the merits of the instant complaint. The calculation of compensatory damages and attorney's fees may be also considered, if necessary. 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 hold a hearing and 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 (K0610)
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 77960, Washington, DC 20013. 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 (0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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. 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.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 1, 2015
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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