05980241
12-10-1999
Victor Morales,) Complainant,) v.) Joseph D. Duffey,) Director,) United States Information) Agency,) Agency.)
Victor Morales,)
Complainant,)
)
v.) Request No. 05980241
) Appeal No. 01956779
Joseph D. Duffey,) Agency No. OCR-0863-34
Director,) Hearing No. 100-94-7526X
United States Information)
Agency,)
Agency.)
)
DENIAL OF REQUEST FOR RECONSIDERATION
Victor Morales (complainant) timely initiated a request for the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider the
decision in Victor Morales v. United States Information Agency, EEOC
Appeal No. 01956779 (December 3, 1997).<1> In 64 Fed. Reg. 37644,
37659 (1999) (to be codified and hereinafter referred to as 29
C.F.R. �1614.405), EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous decision where the party
demonstrates that: (1) the previous decision involved clearly erroneous
interpretation of material fact or law; or (2) the decision will have a
substantial impact on the policies, practices, or operation of the agency.
29 C.F.R. �1614.405(b).
In order to merit the reconsideration of a prior Commission decision, the
requesting party must submit written argument which tends to establish
that at least one of the criteria of 29 C.F.R. �1614.405(b) is met.
The Commission's scope of review on a request for reconsideration is
narrow. Lopez v. Dept. of the Air Force, EEOC Request No. 05890749
(September 28, 1989). A request for reconsideration is not merely a form
of a second appeal. Regensberg v. U.S. Postal Service, EEOC Request No.
05900850 (September 7, 1990).
After a careful review of the record, the Commission finds that
complainant's request for reconsideration does not meet the regulatory
criteria of 29 C.F.R. �1614.405(b). Complainant's request therefore
is DENIED. The decision of the Commission in Appeal No. 01956779 remains
the Commission's final decision in this case. There is no further right
of administrative appeal from a decision of the Commission on a request
for reconsideration.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall recalculate complainant's fee award using the Laffey
matrix to reflect 6.2 hours at $310 per hour and $26.18 in costs and
issue an additional check to counsel for the balance due. the agency is
further ordered to submit a report of compliance, as referenced below.
the report shall include supporting documentation to verify that the
action has been fully implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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
complainant. If the agency does not comply with the Commission's order,
complainant may petition the Commission for enforcement of the order.
29 C.F.R. �1614.503(a). 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 64
Fed. Reg. 37644, 37659-60 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. ��1614.407, 1614.408), and 29 C.F.R. �1614.503(g).
Alternatively, 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)(Supp. V 1993). If complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �1614.409).
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 an 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 EIGHTY (180)
CALENDARS 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:
December 10, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
________________________
________________________
1On November 9, 1999, revised regulations governing EEOC's Federal sector
complaint process went into effect. These regulations apply to all
Federal sector EEO complaints at any stage of the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37644 (1999), where applicable, in deciding the present
request for reconsideration. The regulations, as amended, may also be
found at the Commission's website at www.eeoc.gov.