05991096
11-08-1999
Juan F. Orellana, Appellant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency,
Juan F. Orellana v. Department of the Treasury
05991096
November 8, 1999
Juan F. Orellana, )
Appellant, )
)
v. ) Request No. 05991096
) Appeal No. 01985028
Lawrence H. Summers, ) Agency No. 98-2075
Secretary, )
Department of the Treasury, )
Agency, )
)
DECISION ON REQUEST FOR RECONSIDERATION
Appellant timely initiated a request to the Equal Employment Opportunity
Commission to reconsider the decision in Juan F. Orellana v. Lawrence
H. Summers, Secretary, Department of the Treasury, EEOC Appeal
No. 01985028 (July 30, 1999). EEOC regulations provide that the
Commission may, in its discretion, reconsider any previous decision.
29 C.F.R. � 1614.407(a). The party requesting reconsideration must
submit written argument or evidence that tends to establish one or more
of the three criteria prescribed by 29 C.F.R. � 1614.407(c): that new and
material evidence was available that was not available when the previous
decision was issued, 29 C.F.R. � 1614.407(c)(1); that the previous
decision involved an erroneous interpretation of law or regulation, or
material fact, or a misapplication of established policy, 29 C.F.R. �
1614.407(c)(2); or that the decision is of such exceptional nature as
to have substantial precedential effects, 29 C.F.R. � 1614.407(c)(3).
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the appellant's
request fails to meet the criteria of 29 C.F.R. � 1614.407(c). It is
therefore the decision of the Commission to deny appellant's request.
The decision of the Commission in EEOC Appeal No. 01985028 remains the
final decision in this matter. The agency shall carry out the order set
forth in Appeal No. 01985028, as modified below. There is no further
right of administrative appeal from a decision of the Commission on
request for reconsideration.
ORDER (E1092)
The agency shall schedule, in writing, a meeting between appellant and an
EEO counselor, so that the specific dates of the alleged discriminatory
actions raised in allegations (3) and (9) can be ascertained. After the
meeting, the counselor must issue a new counselor's report concerning
the meeting and the relevant dates. Appellant shall not be required to
refile his complaint of December 30, 1997.
If the agency finds that appellant timely contacted an EEO counselor
with respect to allegations (3) and (9), it shall accept and process
these allegations, together with allegations (11) and (12), as a single
claim of harassment in connection with the terms and conditions of his
employment, in accordance with 29 C.F.R. � 1614.108.
If the agency finds that appellant's initial contact with an EEO counsleor
with respect to allegations (3) and (9) was untimely, it shall process
these allegations in accordance with the regulations set forth in 29
C.F.R. Part 1614, as amended, and shall process allegations (11) and
(12) as a single claim of harassment in connection with the terms and
conditions of his employment, in accordance with 29 C.F.R. � 1614.108.
The agency shall acknowledge to the appellant that it has received
the remanded allegations within thirty (30) calendar days of the date
that it receives this decision. The agency shall issue to appellant
a copy of the investigative file and also shall notify appellant of
the appropriate rights within one hundred fifty (150) calendar days of
the date that it receives this decision, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.410.
RIGHT TO FILE A CIVIL ACTION (Q0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
November 8, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations