0520120593
01-31-2013
Raja R. Rajendran, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Raja R. Rajendran,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Request No. 0520120593
Appeal No. 0120121377
Agency No. ARTYAD10JUL03318
DENIAL
The Agency requested reconsideration of the decision in Raja R. Rajendran v. Department of the Army, EEOC Appeal No. 0120121377 (June 25, 2012). In his response to the Agency's request, Complainant also requested reconsideration of the decision. EEOC Regulations provide that the Commission may, in its discretion, grant a request to 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).
By regulation, requests must be filed within thirty (30) calendar days after the party receives the previous decision. 29 C.F.R. � 1614.405(b). A document is timely filed if it is received or postmarked before the expiration of the applicable filing period or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. 29 C.F.R. � 1614.604(b).
We note that the Commission's previous decision included a Certificate of Mailing indicating that, for purposes of timeliness, the Commission would presume that the decision was received within five (5) calendar days of the date on which it was mailed. The Certificate stated that the decision was mailed to Complainant, Complainant's attorney, and the Agency's Director of EEO Compliance and Complaints Review on June 25, 2012. Thus, the parties are presumed to have received the previous decision no later than June 30, 2012. Thirty days from that date is July 30, 2012.
As evidenced by the postmark date, the Agency mailed its Request for Reconsideration on August 8, 2012. The Agency asserted that it received the prior decision on July 13, 2012, but it offered no evidence, such as a date stamp indicating receipt, to show that the Agency's designated EEO official did not receive the prior decision within five days of the date on which it was mailed.
Complainant, through his attorney, submitted his Opposition to the Agency's Request for Reconsideration and Request for Reconsideration of Expungement of Disciplinary Actions Finding on September 9, 2012. Complainant asserted that his attorney received the Agency's Request on August 20, 2012, but offered no evidence regarding his receipt of the Commission's prior decision. Complainant was entitled to request reconsideration within the same 30-day window as the Agency, following receipt of the Commission's prior decision, not from the time the Agency requested reconsideration.
The parties have not submitted their requests for reconsideration within the 30-day time limit set by regulations and have not provided adequate justification for waiving the time limit. Accordingly, the requests are DENIED. The decision in EEOC Appeal No. 0120121377 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
The Agency is ordered to notify Complainant of his option to either return to the status quo prior to the signing of the settlement agreement or to obtain specific performance of provision 3.b. of the agreement concerning lost wages. The Agency shall so notify Complainant within thirty (30) calendar days of the date this decision becomes final. The Agency shall also notify Complainant that he has fifteen (15) calendar days from the date of his receipt of the Agency's notice within which to notify the Agency either that he wishes to return to the status quo prior to the signing of the agreement or that he wishes to allow the terms of the agreement to stand. Complainant shall be notified that in order to return to the status quo ante, he must return any benefit received pursuant to the agreement. The Agency shall determine its obligations due to 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 reinstate the underlying EEO complaint, the Agency shall resume processing the EEO complaint from the point processing ceased pursuant to 29 C.F.R. � 1614.108 et seq. If, however, Complainant elects specific performance, the Agency shall notify Complainant that the terms of the settlement agreement shall stand and, within thirty (30) days of the date Complainant notifies the Agency that he is electing specific performance, the Agency shall pay Complainant the lost wages he incurred from serving the 3-day suspension during the January 11-13, 2011, time period, as referenced in provision 2.b.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
January 31, 2013
Date
2
0520120593
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120593