Nancyv.Hexmoor, Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.

Equal Employment Opportunity CommissionNov 29, 2004
05a50084 (E.E.O.C. Nov. 29, 2004)

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