CHARLES KRAMER, COMPLAINANT,
v.
JOHN ASHCROFT, ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, (FEDERAL BUREAU OF PRISONS), AGENCY.

Request No. 
05A40050
Appeal No. 07A10108
Agency No. P-99-0223
Hearing No. 160-A0-8288X

December 8, 2003

DENIAL OF REQUEST FOR RECONSIDERATION

On October 6, 2003, Charles Kramer (complainant) timely initiated a request to the Equal Employment Opportunity Commission (EEOC or Commission) to reconsider the decision in Charles Kramer v. Department of Justice, EEOC Appeal No. 07A10108 (September 11, 2003). EEOC Regulations provide that the Commission may, in its discretion, 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. See29 C.F.R. § 1614.405(b).

The record reflects that complainant filed a formal EEO complaint alleging discrimination on the bases of race (White) and age (D.O.B. 4/27/48) when he was not sent to a mandatory training course held in Denver, Colorado in March of 1999. The case was assigned to an EEOC Administrative Judge (AJ), who drew an adverse inference in favor of the complainant and entered a default judgment finding discrimination [FN1]. The AJ found that complainant was entitled to remedial relief and non-pecuniary damages in the amount of $5,000.00. In its final order, the agency rejected the AJ's default judgment and initiated an appeal to the Commission.

In the Commission's decision, we found that the AJ improperly granted default judgment in favor of the complainant. In reaching this conclusion, the Commission found that the record did not establish that the agency failed to comply with the AJ's Order requesting the complaint file. As such, the Commission vacated the AJ's finding of discrimination, and remanded the complaint for a hearing before the AJ.

Complainant then filed his Request, alleging that the AJ acted within his discretion in finding that the agency had failed to comply with his Order and issuing a default judgment against the agency. The agency responded to the Request, contending that complainant has failed to introduce any new arguments or evidence to suggest that the Commission made a clearly erroneous interpretation of fact or law. As such, the agency alleged that the Commission deny complainant's Request.

After a review of complainant's request for reconsideration, 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. 07A10108 remains the Commission's final decision. There is no further right of administrative appeal on the decision of the Commission on this request for reconsideration.

ORDER

To the extent it has not already done so, the agency shall submit to the Hearings Unit of the EEOC's New York District Office the request for a hearing within fifteen (15) calendar days of the date this decision becomes final. The AJ will then supervise the development of the record. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the agency shall issue a final action in accordance with 29 C.F.R. § 1614.110.

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. See29 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. See29 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

FN1. The AJ found that the agency had failed to comply with his Order dated December 22, 1999, requiring the agency to produce a complaint file within fifteen days of the date of the receipt of the Order.