05A30362
03-25-2003
Request No. 05A30362
Steven A. Tomei v. Department of Defense
05A30362
March 25, 2003
.
Steven A. Tomei,
Grievant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.
Request No. 05A30362
Appeal No. 02A20011
Agency No. XQ-99-005
DENIAL OF REQUEST FOR RECONSIDERATION
The Department of Defense (agency) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Steven A. Tomei v. Department of Defense, EEOC Appeal
No. 02A20011 (December 6, 2002). EEOC Regulations provide that the
Commission may, in its discretion, 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).
In our prior decision, we found that grievant was not statutorily
barred from grieving/arbitrating the matter of his removal because
of a previously-filed equal employment opportunity (EEO) complaint.
In its request for reconsideration, the agency renews its argument that
the matters raised by grievant in his EEO complaint and his subsequent
grievance action constituted, as a matter of law, the same �matter,�
therefore precluding him from grieving/arbitrating the agency's ultimate
removal action, and grievant again challenges the agency's argument.
After a review of the agency's request for reconsideration, grievant's
arguments in opposition to the agency's request, the previous decision,
and the entire record, the Commission finds that the request fails to meet
the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 02A20011
remains the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
ORDER<1>
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall forward the matter to an arbitrator for an evidentiary
hearing solely on the appropriate amounts to be paid grievant, pursuant
to the arbitrator's August 30, 2000, decision. 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 (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 grievant
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 grievant
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 grievant 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.
GRIEVANT'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
March 25, 2003
Date
1 While the Commission's previous decision
did not include this express order to the agency, the mandate contained
within this order is apparent in that decision. The Commission includes
the instant order in this decision so as to clearly state the obligation
imposed upon the agency as a result of our previous decision.