05970223
10-08-1998
Dorothy M. Buckli, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Dorothy M. Buckli v. Department of the Army
05970223
October 8, 1998
Dorothy M. Buckli, )
Appellant, )
)
v. ) Request No. 05970223
) Appeal No. 01955874
Louis Caldera, ) Agency No. BXJCFO9504F0010
Secretary, )
Department of the Army, )
Agency. )
___________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On December 6, 1996, Dorothy M. Buckli, (hereinafter referred to as
the appellant) timely initiated a request to the Equal Employment
Opportunity Commission (Commission) to reconsider the decision in
Dorothy M. Buckli v. Togo D. West, Jr., Secretary, Department of
the Army, EEOC Appeal No. 01955874 (November 1, 1996) received on
November 12, 1996. EEOC Regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision. 29
C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence that tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, appellant's
request is denied. However, the Commission exercises its discretion
pursuant to 29 C.F.R. �1614.407(a) to reconsider the previous decision
on its own motion.
ISSUE PRESENTED
Whether the previous decision properly affirmed the portion of the
agency's final decision which dismissed allegation No. 1 of appellant's
complaint.
BACKGROUND
On March 16, 1995, appellant contacted an EEO Counselor alleging
that based on her sex (female):(1) from 1988 until March 1995, she was
subjected to inappropriate sexual remarks and actions by her supervisor;
and (2) her refusal to submit to her supervisor's sexual suggestions
resulted in his refusal to request a reclassification and upgrade of
her Editor, GS-1082-7, position. In its final agency decision, the
agency dismissed allegation Nos. 1 and 2 for failure to contact an EEO
Counselor in a timely manner. The agency also indicated that allegation
No. 1 no longer stated a live controversy and was therefore "moot."
The previous decision declined to affirm the agency's dismissal of
allegation No. 1 on the grounds of untimely EEO Counselor contact because
the record did not clearly show when the most recent incident of sexual
harassment occurred. The decision found, however, that the agency's
alternative dismissal of allegation No. 1 as "moot" was proper because
appellant's supervisor had retired on June 30, 1995. The decision also
observed that the only relief appellant requested if she were to prevail
on allegation No. 1, would constitute relief for allegation No. 2,
which the agency had properly dismissed for failure to contact an EEO
Counselor in a timely manner. In affirming the agency's dismissal of
allegation No. 2 for untimely EEO Counselor contact, the previous decision
addressed appellant's assertion that the agency's alleged classification
discrimination was timely pursuant to continuing violation theory. The
decision found that the agency's classification determination, following
appellant's July 1994 job audit, was a discrete act with the degree of
permanence which should have triggered appellant's awareness of her duty
to assert her rights under Title VII. The decision further noted that
appellant learned in approximately August of 1994 that her supervisor
allegedly told an assistant that he would never promote her, and was aware
as of July or August 1994 that the agency believed her job to be properly
classified, yet did not contact an EEO Counselor until March 16, 1995.
In her request for reconsideration, appellant indicates that she
is providing additional substantiation for her claim in the form of
a November 26, 1996 letter in which the agency provided a negative
decision. No such letter is attached, however, appellant submits copies
of her 1990 and 1991 performance appraisals.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that the
appellant's request for reconsideration fails to meet any of the criteria
of 29 C.F.R. �1614.407(c), in that the appellant has not demonstrated
that the documentation she now presents with her request is material
in nature, and was previously unavailable. Nor has appellant raised
any arguments which demonstrate error in the previous decision. It is
therefore the decision of the Commission to deny appellant's request.
Notwithstanding our denial of appellant's request, however, we exercise
our discretion pursuant to 29 C.F.R. 1614.407(a) of our regulations
to reconsider the previous decision in part.<1> With regard to the
dismissal of allegation No. 1, our review of the record indicates
that appellant asserted in her precomplaint counseling form that
her supervisor's harassment caused her professional and psychological
damage. Appellant also asserted that her supervisor damaged her reputation
by denigrating her claims of harassment to others through the "good ole
boy" network. Thus, we find that appellant's statements are sufficient
to indicate an intent to claim compensatory damages in the event that
she prevails on her complaint. Consequently, her allegations of sexual
harassment cannot be deemed to be "moot."
Notwithstanding our ruling that allegation No. 1 remains a live
controversy, the timeliness of appellant's EEO Counselor contact remains
at issue. In this regard, the EEO Counselor's report indicates that
appellant stated that she and another individual contacted agency managers
regarding the harassment in approximately March of 1994, but did not
register an EEO complaint after they were assured that the matter would
be handled through command channels. While the EEO Counselor stated that
the agency had reprimanded the official, appellant apparently contacted
an EEO Counselor after a March 5, 1995 search of a common area disclosed
obscene slides allegedly used by the supervisor in conducting briefings.
In the past, the Commission has found that contact with an agency official
who was not an EEO Counselor, but who was "logically connected with the
EEO process," was sufficient to constitute EEO contact, notwithstanding
the fact that a complainant apparently was aware of the EEO process. See
George G. Jones v. Department of the Army, EEOC Request No. 05900435
(September 7, 1990). Furthermore, the Commission has found that in the
case of sexual harassment, contact with a supervisory official, who
was not an EEO Counselor, was sufficient to constitute EEO contact. See
Karin Landmesser v. Department of Housing and Urban Development, EEOC
Request No. 05920835 (May 6, 1993). Upon review, we find that appellant's
contact with agency officials regarding the alleged sexual harassment as
early as March 1994, was sufficient to constitute EEO contact since the
agency was clearly put on notice regarding her allegations. Accordingly,
the Commission finds that appellant's EEO contact regarding allegation
No. 1 was timely, and that the agency improperly dismissed appellant's
complaint.
CONCLUSION
After a review of the appellant's request for reconsideration,
the previous decision, and the entire record, the Commission
finds that appellant's request fails to meet the criteria of 29
C.F.R. �1614.407(c), and it is the decision of the Commission to
DENY this request. The Commission exercises its discretion, however,
pursuant to 29 C.F.R. �1614.407(a) to reconsider the decision on its
own motion. The decision of the Commission in EEOC Appeal No. 01955874
(November 1, 1996) and the agency's final decision are REVERSED in
part. The agency is directed to comply with the Commission's Order set
forth below. There is no further right of administrative appeal from a
decision of the Commission on a request to reconsider.
ORDER (E1092)
The agency shall acknowledge to the appellant that it has received the
remanded complaint allegation No. 1 within thirty (30) calendar days of
the date this decision becomes final. The agency shall issue to appellant
a copy of the investigative file and also shall notify appellant 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 appellant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of appellant's request. A copy of the agency's letter of
acknowledgement to appellant 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 (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.
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:
OCT 8, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat
1We do not discern any basis for reconsideration of the previous
decision's ruling with respect to allegation No. 2.