0520080219
03-05-2008
Roxanne M. Zeigler, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Roxanne M. Zeigler,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Request No. 0520080219
Appeal No. 0120073741
Agency No. 200721351FAA05
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in Roxanne
M. Zeigler v. Department of Transportation, EEOC Appeal No. 0120073741
(November 8, 2007). 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).
Regarding the claims addressed in the final agency decision and the
previous decision, after reconsidering 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. Regarding the claims addressed therein,
the decision in EEOC Appeal No. 0120073741 remains the Commission's
final decision.
However, the FAD failed to address some claims contained in the complaint.
Complainant discussed these claims in her request. Based upon our review
of the counselor's report and complaint, the claims not previously
addressed were whether complainant was discriminated against based on
her race (black) and sex (female), and was subjected to reprisal for
prior EEO activity when:
1. she was consistently required to take leave when arriving late,
but others were not,
2. denied leave requested for January 29, 2007,
3. she did not receive important training until March 29, 2007,
4. she was issued a Memorandum of Discussion dated April 5, 2007,1
5. on June 5, 2007, her supervisor sat with her while she worked, and
shortened her lunch break, and
6. on June 5, 2007, she was constructively discharged.2
As these claims were not addressed, the order below will require
the agency to address them on remand. There is no further right of
administrative appeal on the decision of the Commission on this request.
ORDER
The agency is ordered to process complaint claims 1 through 6 in
accordance with 29 C.F.R. Part 1614.3 The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final.
A copy of the agency's letter of acknowledgment to complainant must be
sent to the Compliance Officer as referenced below.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be
filed with the office of federal operations (OFO) within thirty (30)
calendar days of receipt of this decision or within twenty (20) calendar
days of receipt of another party's timely request for reconsideration.
See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 5, 2008
__________________
Date
1 The Memorandum of Discussion addressed in the FAD and previous decision
was dated March 19, 2007 (erroneously bore the date of March 9, 2007).
2 Complainant submitted a copy of her letter of resignation to the EEO
counselor. The letter indicated complainant resigned due to ongoing
problems with management and harassment.
3 As part of this, the agency must ask complainant to clarify the bases
of discrimination (including reprisal) she is claiming for each claim.
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0520080219
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0520080219