05A21100
12-09-2002
Dorothea Jones-Mason, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Dorothea Jones-Mason v. Department of Energy
05A21070
December 9, 2002
.
Dorothea Jones-Mason,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Request No. 05A21070
Appeal No. 01A14338
Agency No. DOE 99/021OR
Hearing No. 250-99-8198X
DENIAL OF REQUEST FOR RECONSIDERATION
The Department of Energy (agency) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Dorothea Jones-Mason v. Department of Energy, EEOC
Appeal No. 01A14338 (July 11, 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).
In our previous decision, the Commission vacated and remanded the agency's
final order. We found that the agency failed to carry out the AJ' s
order to investigate complainant's claim of discriminatory termination
in a timely manner was required to be completed within 180 days from
the date of AJ's order and included in the Report of Investigation.
We also found that the AJ erred in granting summary judgment on part of
complainant's claims while one of her claims was pending investigation.
In its request for reconsideration, the agency contends that the issue
of complainant's termination was resolved in a settlement agreement,
that was negotiated while complainant's appeal was before the MSPB.
The agency alleged that the settlement agreement allowed complainant
to pursue an EEO complaint against DOE, but refers to complainants'
present complaint which bears on the issue of complainant's non-selection.
The agency argued that the statement granting complainant the right to
pursue her EEO complainant, does not, in any way, relate to complainant's
termination, nor indeed could it, otherwise, the settlement agreement
would have no efficacy. The agency contends that clause four of the
settlement agreement states that complainant waives and releases all
claims that she has alleged or could have alleged against DOE, as set
forth in her termination complaint.
Complainant opposed the agency's request for reconsideration, arguing
that on April 4, 2000, she received an order from the AJ, that allowed
her to amend her complaint to allege discrimination based on race,
disability and retaliation when she was terminated from her employment.
Complainant contends that the settlement with MSPB specifically granted
her the right to continue to pursue her EEO complaint.
We conclude that the agency failed to raise any argument or evidence not
previously considered in rendering the prior decision. We conclude that
the agency failed to carry out the AJ's order to investigate complainant's
claim of discriminatory termination.
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the request. The decision in EEOC
Appeal No. 01A14338 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this request for reconsideration.
ORDER
1. This matter is remanded to the Hearing Unit of the Memphis District
Office for further proceeding consistent with this decision and the
EEOC Order dated April 4, 2000 directing an investigation of the amended
complaint.
2. The agency is directed to submit a copy of the complaint file to the
EEOC Hearing Unit within 15 days of the date of this Order. 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 issue
a decision on the amended 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 (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
December 9, 2002
__________________
Date