01975952
11-16-1998
Alfred J. Ebner, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Alfred J. Ebner v. Department of the Treasury
01975952
November 16, 1998
Alfred J. Ebner, )
Appellant, )
)
v. ) Appeal No. 01975952
) Agency No. 97-2187
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
(Internal Revenue Service), )
Agency. )
______________________________)
DECISION
For the reasons set forth below, we set aside the agency's June 26,
1997 final decision (FAD) dismissing appellant's April 23, 1997 formal
EEO complaint for failure to state a claim and alleging a discriminatory
proposal, or other preliminary step, to take a personnel action, pursuant
to 29 C.F.R. ��1614.107(a) and .107(e), respectively, in relevant parts.
We find no arguments by the agency in response to appellant's July 22,
1997 appeal to persuade us to reach a contrary decision.
We find the FAD has failed to properly define appellant's complaint.
See Smith v. United States Postal Service, EEOC Request No. 05921017
(April 15, 1993). We find that while the focus of the FAD was
on appellant's allegation of harassment for prohibited reasons in
connection with his purportedly receiving erroneous Quality Assurance
Review notices ("error slips"), the FAD did not specifically address
appellant's claim that the issuance of error slips had a negative impact
on his job evaluations over the years.
The FAD is hereby VACATED, and appellant's complaint is hereby REMANDED
for further processing, at the point at which processing ceased,
consistent with this decision and applicable regulations. The parties are
advised that this decision is not a decision on the merits of appellant's
complaint. The agency is directed to comply with the Commission's ORDER
set forth below.
ORDER
The agency is ORDERED to process appellant's complaint in accordance with
29 C.F.R. Part 1614 and instructions in this decision. Specifically,
the agency shall:
1. Schedule in writing a meeting between appellant and an EEO counselor so
an agreement can be reached on the issues in appellant's April 23, 1997
complaint, including dates of occurrence and the specific incidents and
individuals involved. After the meeting(s), the counselor must issue a
new counselor's report concerning the meeting(s), defining the complaint,
and distinguishing live allegations from those intended as background
information intended to support the live allegations. Appellant shall
be permitted to clarify his complaint, but he shall not be permitted to
raise new allegations. Appellant shall not be required to refile his
April 23, 1997 complaint.
2. If an agreement cannot be reached on a definition of the issues in
appellant's complaint, then the agency shall issue a FAD defining the
complaint. Such a FAD must explicitly define all the allegations in
the complaint, i.e., the agency shall not dismiss allegations, de facto,
by failing to define or address allegations.
3. The agency shall notify appellant in writing of all allegations,
if any, it is accepting for investigation. If the agency wishes to
dismiss any allegations, then it must issue a FAD doing so. Such a
FAD must list all allegations being dismissed, provide the grounds for
dismissal, and cite to the evidence the agency has relied on. Any FAD
must contain appeal rights to the Commission.
4. The agency shall complete all the above ordered actions, including
issuance of the FAD, within ninety (90) calendar days of the date this
decision becomes final.
5. A copy of the agency's letter to appellant arranging a meeting with
an EEO counselor, and a copy of the acceptance letter and/or FAD issued
pursuant to instruction 3 above must be sent to the Compliance Officer
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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 the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
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 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 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 (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:
November 16, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations