0520080129
12-19-2007
David J. Holden, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice, Agency.
David J. Holden,
Complainant,
v.
Michael B. Mukasey,
Attorney General,
Department of Justice,
Agency.
Request No. 0520080129
Appeal No. 0120073424
Agency No. BOP-2007-0297
DENIAL
The agency timely requested reconsideration of the decision in David
J. Holden v. Department of Justice (Federal Prisons), EEOC Appeal
No. 0120073424 (October 12, 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).
The previous decision reversed the final agency decision which
dismissed complainant's complaint for failure to initiate contact with
an EEO counselor within the 45 calendar day time. In his appeal brief,
complainant wrote that he was told he had 180 days to file from the time
he realized he had a legitimate complaint. In his notice of appeal, he
wrote that he was unaware the timeline to file his case. The previous
decision interpreted this to mean that complainant contended he was
unaware of the time limit to initiate contact with an EEO counselor.
Citing EEO case precedent that the agency always bears the burden of
obtaining sufficient information to support a reasoned determination as
to timeliness, the previous decision found that the agency failed to meet
this burden. It found that the agency failed to provide any evidence
or statements that complainant was made aware of the time limits for
contacting an EEO counselor - there was no information in the record
as to whether EEO posters were in the workplace or whether complainant
had training on EEO matters including time frames for contacting an
EEO counselor.
On request, the agency argues that complainant's explanations do not
reflect he was not notified of the 45 day time limit to initiate EEO
counseling. Rather, the agency recounts, complainant told the EEO
counselor that he delayed because he was trying to resolve matters
informally on his own, and on appeal wrote that someone, who was not
identified, told him he had 180 days to file. For the first time on
request the agency submits some evidence of EEO posters in the workplace,
and EEO training complainant previously received.
We find that the previous decision did not make a clearly erroneous
interpretation of fact when it interpreted complainant's appeal statement
to mean he was unaware of the time limit for contacting an EEO counselor.
Further, the right to request reconsideration is not a second chance
to oppose an appeal. Based on the record before it, the previous
decision did not make a clearly erroneous interpretation of material
fact or law.
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. The decision in EEOC Appeal No. 0120073424 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request. The agency
shall comply with the Order as set forth below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. 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. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights 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.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 19, 2007
__________________
Date
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0520080129
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0520080129