05a00867
07-11-2000
Harold L. Bibb, et al., Complainant, Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Harold L. Bibb, et al. v. Department of the Treasury
05A00867
July 11, 2000
Harold L. Bibb, et al., )
Complainant, ) Request No. 05A00867
) Appeal No. 01994281
) Agency No. 96-0022C
) Hearing No. 250-96-8285X
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission to reconsider the decision in Harold L. Bibb, et
al. v. Department of the Treasury, EEOC Appeal No. 01994281 (May 3,
2000).<1> 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)).
The Commission's prior decision found that the Administrative Judge's
decision became the final decision of the agency pursuant to EEOC
Regulation 29 C.F.R. � 1614.204(d)(7), when the agency failed to timely
issue a decision that modified or rejected the Administrative Judge's
decision. EEOC Regulation 29 C.F.R. � 1614.204(d)(7) required agencies
to issue a final agency decision adopting, modifying, or rejecting an
Administrative Judge's recommended decision on class certification within
thirty calendar days of the agency's receipt of the recommended decision.
The Commission's prior decision found that a copy of a signed Domestic
Return Receipt addressed to the agency showed that the agency received the
Administrative Judge's decision on March 3, 1999. The thirtieth calendar
day following March 3, 1999, was Friday, April 2, 1999. However, the
agency did not issue its final decision until Monday, April 5, 1999.
Accordingly, the Commission's prior decision reversed the agency's
dismissal of the class complaint and the agent's individual complaint,
and remanded the class complaint for further processing in accordance
with applicable regulations.
In its request for reconsideration, the agency states that a clerk in
the agency's Office of Equal Opportunity Program (OEOP) signed a Domestic
Return Receipt on March 3, 1999. The agency argues, however, that it has
no records or documents reflecting the March 3, 1999 date. The agency
indicates that the Administrative Judge's decision was date-stamped
as received on March 4, 1999, and that the agency's computerized case
tracking system also indicates that the agency received the Administrative
Judge's decision on March 4, 1999. The agency further indicates that it
has no record of receiving the June 1, 1999 letter from the complainant's
attorney wherein the timeliness issue was raised. The agency contends
therefore, that it has shown good cause for its apparent one-business-day
delay in issuing the final agency decision and has supported its
contentions with new and material evidence that was not known to the
agency prior to the issuance of the Commission's appellate decision.
The agency requests that the Commission grant the agency's request and
reinstate the final agency decision. In addition, the agency raises other
matters that were not addressed in the Commission's appellate decision.
The Commission finds that the agency has not shown good cause for its
failure to timely issue a decision within 30 days of the agency's
receipt of the Administrative Judge's decision. The agency indicates
only that the date on the Domestic Return Receipt card (March 3, 1999)
does not correspond with the date stamp on the Administrative Judge's
decision (March 4, 1999). However, the agency has not submitted an
affidavit from the employee who signed the Domestic Return Receipt on
March 3, 1999, or from the employee who date-stamped the Administrative
Judge's decision on March 4, 1999, that would explain the discrepancy
in the receipt dates. The agency's date-stamping the Administrative
Judge's decision as received in the OEOP one day after receipt by the
agency does not justify extending the 30-calendar-day time limitation
under the doctrines of waiver, estoppel, or equitable tolling set forth
in 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.604(c)). See Chambliss
v. Department of Defense, Request No. 05930439 (August 12, 1993) (time
limitations period begins to run when the document is received by the
agency's mail room clerk and not when it is actually received by the
addressee).
After a review of the agency's request for reconsideration, the
previous decision, and the appeal 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. 01994281 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
The agency is ORDERED to process the remanded claims in accordance with 64
Fed. Reg. 37,644, 37,658 (1999) (to be codified as 29 C.F.R. � 1614.204).
The agency shall acknowledge receipt of the remanded claims within
fifteen calendar days of the date of this decision. Also, the agency
must notify all class members of the acceptance of the class complaint,
as provided in 64 Fed. Reg. 37,644, 37,658 (1999) (to be codified as 29
C.F.R. � 1614.204(e)).
A copy of the agency's letter of acknowledgment to complainant and a copy
of the notice 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 (R0400)
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:
July 11, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On 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.