0520130152
06-06-2013
Rosemary Perez, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Rosemary Perez,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520130152
Appeal No. 0120121895
Agency No. 200406592010101931
DENIAL
The Agency timely requested reconsideration of the decision in Rosemary Perez v. Department of Veterans Affairs, EEOC Appeal No. 0120121895 (August 31, 2012). 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).
Complainant alleged she was discriminated against on the bases of her race, sex, and age. Complainant requested a hearing before an EEOC Administrative Judge (AJ). However, the AJ dismissed her request as untimely and remanded it to the Agency for a Final Agency Decision (FAD). After the Agency issued a decision, Complainant appealed the FAD to the Commission.
In the appellate decision, the Commission determined that the Agency failed to establish that Complainant had received the notice of the right to request a hearing before an EEOC AJ. The Commission held that the Agency failed to demonstrate its burden regarding the issue of timeliness. As a result, the Commission determined that Complainant was entitled to a hearing before an EEOC AJ. The Commission remanded the complaint for a hearing. The Agency requested that the Commission reconsider its appellate decision.
In its request for reconsideration, the Agency argues that Complainant received the notice and failed to timely request a hearing before an EEOC AJ. In support of its argument, the Agency produced the United Postal Service documents which show when the notice was sent by the Agency and received by Complainant and her representative. However, we note that this evidence was not in the record for the appellate decision. We note that new evidence generally will not be accepted in a request for reconsideration. See Houser v. Dep't of Homeland Security, EEOC Request No. 0520110548 (Oct. 7, 2011) citing Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), � VI(A)(3). We may accept new evidence, however, if the parties affirmatively demonstrate it was not previously available despite the exercise of due diligence. Id.; Est. of Petersen v. Dep't of Transp., EEOC Appeal No. 07A50016 (September 21, 2005). Here, we find that the Agency failed to exercise due diligence when it did not submit all relevant documentation during the appeal. Accordingly, we find that the Agency failed to establish that the appellate decision involved a clearly erroneous interpretation of material fact or law; or the appellate decision will have a substantial impact on the policies, practices, or operations of the agency.
After reviewing 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. 0120121895 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the appellate decision's Order as restated below.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC Charlotte District Office a request for a hearing within fifteen (15) calendar days of the date this decision becomes final. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the request and complaint file have been transmitted to the Hearings Unit.
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
__6/6/13________________
Date
2
0520130152
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520130152