05a50084
11-29-2004
Nancy V. Hexmoor, Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.
Nancy V. Hexmoor v. General Services Administration
05A50084
November 29, 2004
.
Nancy V. Hexmoor,
Complainant,
v.
Stephen A. Perry,
Administrator,
General Services Administration,
Agency.
Request No. 05A50084
Appeal No. 01A42732
Agency No. GSA-04-2003-0016
DISMISSAL OF REQUEST FOR RECONSIDERATION
On October 14, 2004, the General Services Administration (agency)
initiated a request to the Equal Employment Opportunity Commission (EEOC
or Commission) to reconsider the decision in Nancy V. Hexmoor v. General
Services Administration, EEOC Appeal No. 01A42732 (September 8, 2004).
In the previous decision, the Commission provided notice to both parties
that requests to reconsider must be filed with the Office of Federal
Operations within thirty (30) calendar days of receipt of the decision,
as required by 29 C.F.R. � 1614.405. In its request statement, the agency
indicates that it received the prior decision on September 14, 2004.
In response, complainant avers that the agency submits no evidence to
confirm its date of receipt, or to show that it received the decision
beyond the 5-day presumption period. Complainant argues that the agency's
request for reconsideration is untimely, and should be dismissed.
As set forth in the previous decision, for timeliness purposes, the
Commission will presume receipt of the appeal decision within five (5)
calendar days after it was mailed. Here, the record shows that the
previous decision was mailed on September 8, 2004, such that receipt is
presumed to have occurred on Monday, September 13, 2004. Therefore, in
order to be timely, the agency had to file its request for reconsideration
on or before Wednesday, October 13, 2004. In this case, the agency filed
its request on Thursday, October 14, 2004, one day beyond the time limit.
Moreover, as noted by complainant, the agency presents no evidence to
rebut the 5-day presumption of receipt.
Accordingly, for the reasons set forth above, we DISMISS the captioned
request for reconsideration. The Commission's decision in EEOC Appeal
No. 01A42732 is final, and the agency is ORDERED to undertake the actions
specified in the previous decision, as set forth below.
ORDER
The agency is ORDERED to notify complainant of her option to return
to the status quo prior to the signing of the settlement agreement and
having her complaint reinstated, or having the terms of the agreement
specifically enforced. The agency shall so notify complainant within
fifteen (15) calendar days of the date this decision becomes final.
Complainant shall be notified that in order to return to the status quo
ante, she must return any benefits received pursuant to the agreement.
The agency shall determine any payment due complainant, or return
of consideration or benefits due from complainant, within thirty (30)
calendar days of the date this decision becomes final, and shall include
such information in the notice to complainant.
If complainant elects to return to the status quo ante and she returns
any monies or benefits owing to the agency, as specified above, the
agency shall resume processing complainant's complaint from the point
processing ceased pursuant to EEOC Regulation 29 C.F.R. � 1614.108,
et seq. If complainant elects not to return to the status quo ante,
i.e., not to return any consideration owing the agency, the agency shall
notify complainant that the terms of the settlement agreement will be
specifically enforced.
A copy of the agency's notice to complainant regarding her options,
including the determination of consideration due or owing, as well
as a copy of either the correspondence reinstating the complaint for
processing, or the correspondence notifying the complainant that the
terms of the agreement will be specifically enforced, must be sent to
the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 29, 2004
__________________
Date