05a50426
01-28-2005
Welford Burton, Complainant, v. Kay Coles James Director, Office of Personnel Management, Agency.
Welford Burton v. Office of Personnel Management
05A50426
January 28, 2005
.
Welford Burton,
Complainant,
v.
Kay Coles James
Director,
Office of Personnel Management,
Agency.
Request No. 05A50426
Request No. 05A50122
Appeal No. 01A43369
Agency No. OO-26
Hearing No. 100-A1-7060X
DENIAL
The Office of Personnel Management (agency) requested reconsideration
for a second time of the decision in Welford Burton v. Office of
Personnel Management, EEOC Appeal No. 01A43369 (August 26, 2004).
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).
The agency contends that our denial of the initial request for
reconsideration on the basis of untimeliness, Welford Burton v. Office
of Personnel Management, EEOC Request No. 05A50122 (December 21, 2004),
was improper.<1> We remind the agency, however, that there is no further
right of administrative appeal on the decision of the Commission on a
request for reconsideration.
Accordingly, it is the decision of the Commission to deny the request.
The decision in EEOC Appeal No. 01A43369 remains the Commission's
final decision. There is no further right of administrative appeal on
the decision of the Commission on this request. We hereby direct the
agency to take action consistent with the ORDER below.
ORDER
Within fifteen (15) calendar days from the date this decision becomes
final, and to the extent that it has not already done so, the agency is
ORDERED to offer complainant a permanent Paralegal Specialist, GS-11
position or a substantially equivalent position. Complainant shall
have fifteen (15) calendar days from receipt of the offer to fully
accept or decline the offer. Failure to accept offer within fifteen
(15) calendar days will be considered a declination of the offer,
unless the individual can show that circumstances beyond his control
prevented a response within the time limit. If complainant accepts this
offer, it shall be retroactive to the date that the first of the three
individuals selected for the position was placed into the position.
Pursuant to 29 C.F.R. � 1614.501(a)(4) and (c)(1), the agency shall
provide complainant with appropriate retroactive back pay and interest
and other benefits due to reflect his promotion to GS-11 level one year
after he is deemed to have been retroactively placed into the position
through the date which he accepts or declines to accept the position.
The agency is further ORDERED to submit a report of compliance,
as provided in the statement below entitled "Implementation of
the Commission's Decision." This report shall include supporting
documentation of the agency's timely offer and the agency's payment of
back pay with interest.
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 (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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. 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.
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:
January 28, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 Specifically, the agency
contends that the request was timely because the agency received the
appellate decision more than five calendar days after it was mailed.
We note that a party may request reconsideration within thirty days of
receipt of the previous Commission decision. See 29 C.F.R. � 1614.405(b).
Unless evidence to the contrary is presented, the Commission presumes
that a decision is received within five calendar days after it is mailed.
Here, the agency failed to present evidence of when it received the
appellate decision along with its request, and only attempts to produce
such evidence for the first time now, when the administrative processing
of this case has already closed.