05A50066_r
11-17-2004
Robert A. Nance, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Robert A. Nance v. Department of Transportation
05A50066
November 17, 2004
.
Robert A. Nance,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Request No. 05A50066
Appeal No. 01A33742
Agency No. 5-93-5164R
Hearing No. 310-99-5298X
DENIAL OF REQUEST FOR RECONSIDERATION
Complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Robert
A. Nance v. Department of Transportation, EEOC Appeal No. 01A33742
(August 24, 2004). 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).
After a review of complainant's request for reconsideration, 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. 01A33742 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
The agency is Ordered to take the following action:
Provide a Notification of Personnel Action or other equivalent pay
documentation showing that complainant received a within-grade increase
from a step 7 to step 8 on June 19, 2000, with an effective date of
December 29, 1991.
Provide evidence of all payments made to complainant pursuant to provision
(3) of the offer of full relief requiring compensation in an amount
equivalent to that he would have received in connection with the receipt
of the acceptable performance rating. Specifically, the agency shall
provide information showing how such calculations were made, the amount
of interest provided, and evidence showing how and when payment was made.
If the agency cannot provide evidence that it took the action described
in provision (3) of its offer, then the agency shall reinstate
complainant's complaint for further processing and request assignment
of an Administrative Judge to conduct a hearing.
Within 30 days of the date this decision becomes final, the agency shall
issue a new decision or issue a notice of further processing and request
for assignment of an Administrative Judge. A copy of the new final
decision or notice of further processing and request for assignment
of an Administrative Judge must be sent to the Compliance Officer as
referenced herein.
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 17, 2004
__________________
Date