0520070690
08-21-2007
Earnestine Sykes, Petitioner, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.
Earnestine Sykes,
Petitioner,
v.
Mike Leavitt,
Secretary,
Department of Health and Human Services,
Agency.
Request No. 0520070690
Petition No. 0420060012
Appeal No. 01A14306
Agency No. FDA-N-02201
DENIAL
Petitioner timely requested reconsideration of the decision in Earnestine
Sykes v. Department of Health and Human Services, EEOC Appeal No. 01A14306
(June 1, 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).
In her request, petitioner asks that the Commission reconsider our order
to the agency, to provide her with priority consideration for the next
three vacant positions within the NCTR. Complainant argues that the
position for which she was denied priority consideration, a Program
Analyst GS-343-13 position, "is not likely to be announced again at
the NCTR during the remainder of [her] career (less [than] one year to
retirement)." Petitioner asserts that instead, the agency be directed
to select her for the position or to promote her retroactively.
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. We do not find that the above referenced arguments
support an alteration of our previous order. Consequently, the decision
in EEOC Appeal No. 0420060012 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request.
ORDER
Upon its receipt of this decision, the agency must provide complainant
with priority consideration for the next three vacant positions within
the NCTR, as set forth in provision [1(b)] above. The agency must
provide documentary evidence to complainant and to the Commission
demonstrating its compliance with this provision, and must provide a
detailed explanation to justify any decision not to select complainant.
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
(R0900)
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 (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
August 21, 2007
__________________
Date
2
0520070690
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0520070690