05971036
06-04-1999
Ray N. Jackson, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Ray N. Jackson v. Department of the Air Force
05971036
June 4, 1999
Ray N. Jackson, )
Appellant, )
) Request No. 05971036
v. ) Appeal No. 01965738
) Agency No. SQOJ96001
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
__________________________________)
DECISION
On August 27, 1997, Ray N. Jackson (hereinafter referred to as
the appellant) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision
in Ray N. Jackson v. Sheila E. Widnall, Secretary, Department of
the Air Force, EEOC Appeal No. 01965738 (July 8, 1997), received on
July 28, 1997. EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3).
Appellant filed a formal complaint dated January 10, 1996. Among other
things, he argued that he was discriminated against based on race (Black)
and in reprisal (previous EEO activity) when: (3) on October 5, 1995,
the administration of official time was unjustly and frivolously changed
requiring him to use a computer during duty hours on the job to prepare
EEO complaints; and (5) on October 4, 1995, his supervisor demanded that
in order to receive official time, he must provide him with copies of
things that would normally be contained in the file of EEO complaints.<1>
The agency dismissed the above allegations for failing to state a claim
since appellant never identified a specific incident. The previous
decision, after concluding that appellant was not aggrieved, affirmed
the agency's dismissal.
In his request to reconsider (RTR), appellant, in pertinent part,
argued that the Commission did not have jurisdiction to reach the
above determination because, the agency withdrew its dismissal of
appellant's complaint. Both appellant and the agency indicated that
the dismissal of appellant's complaint was withdrawn and that all of
appellant's allegations were accepted for investigation. According to the
agency, on July 31, 1997, appellant received the agency's investigation
report, and on September 10, 1997, he requested a hearing before an
EEOC Administrative Judge. Consequently, the agency maintained that
appellant's request should be dismissed as moot.<2>
For the reasons indicated above, the Commission hereby exercises
its authority, pursuant to 29 C.F.R. �1614.407(a), to reconsider the
previous decision. Consequently, we will VACATE the previous decision's
conclusion concerning allegations (3) and (5). Allegations (3) and (5)
will be REMANDED for processing consistent with this decision and the
ORDER below. The decision in EEOC Appeal No. 01965738 (July 8, 1997), AS
MODIFIED, remains the Commission's final decision. There is no further
right of administrative appeal from a decision of the Commission on a
request to reconsider.
ORDER (E1092)
To the extent it has not already done so, the agency is ORDERED to
process the remanded allegations 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 this
decision becomes final. 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 this
decision becomes final, 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.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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:
June 4, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1The agency also dismissed allegations (1), (2), and (4) of appellant's
complaint. The previous decision, however, reversed the agency. Since
appellant's request for reconsideration only pertains to allegations
(3) and (5), we will not address allegations (1), (2), and (4) in this
decision.
2Appellant, we note, also argued that the previous decision erred in
finding that he was not aggrieved. According to appellant, allegations
(3) and (5) were part of an ongoing series of actions that constituted
a pattern and practice of discrimination and harassment.