01975251
10-30-1998
Elizabeth Donnelly, Appellant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Elizabeth Donnelly v. Department of Energy
01975251
October 30, 1998
Elizabeth Donnelly, )
Appellant, ) Appeal No. 01975251
v. ) Agency No. DOE 94(9)NV
)
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
DECISION
Appellant timely filed an appeal from a final agency decision ("FAD")
dated May 23, 1997. The appeal is accepted in accordance with EEOC
Order No. 960, as amended.
In October 1993, appellant filed a formal EEO complaint which alleged
that she had been subjected to discrimination on the bases of her sex,
national origin (German/Jewish), religion (Jewish ancestry), age (42)
and reprisal for prior EEO activity. In pertinent part, that complaint
challenged appellant's nonselection for the agency's Defense Programs
Fellowship. After the agency issued its FAD, appellant timely filed
an appeal. On appeal, the Commission found that the agency had failed to
develop a "complete and impartial factual record," in accordance with 29
C.F.R. �1614. 108(b), inasmuch as the EEO Investigator neither identified,
nor obtained a statement from, the individual(s) responsible for making
the selection decision. In addition, the record did not contain any
specifics regarding the selection process or why appellant was not
selected. Accordingly, the Commission vacated the FAD and remanded
the matter, ordering the agency to determine the responsible agency
official(s) and to obtain relevant evidence, including who was selected,
that individual's qualifications, and why appellant was not selected.
See EEOC Appeal No. 01951625 (May 5, 1997).
Meanwhile, on November 26, 1996, the agency issued a FAD which
pertained to 16 other EEO complaints filed by appellant. In this FAD,
the agency noted that appellant had filed some 29 complaints containing
approximately 50 allegations, had named at least 52 agency officials
as actively engaging in malfeasance and collusion against her, had
attacked individuals responsible for processing her complaints, had
repeatedly filed complaints containing identical issues, and had failed
to prevail on the merits of any of her allegations. The agency found
that appellant's complaints were subject to dismissal for abuse of the
EEO process. Appellant timely appealed this FAD.
Upon receipt of the Commission's Order in EEOC Appeal No. 01951625, the
agency issued a new FAD on May 23, 1997, which referenced its November
1996 FAD and again dismissed the complaint. This time, the agency
dismissed the complaint for abuse of the EEO process. As noted above,
upon receipt of this FAD, appellant timely filed her instant appeal.
However, while appellant's instant appeal was pending, the Commission
issued its decision on appellant's challenge to the agency's November
1997 FAD. The Commission found that the agency had improperly determined
that appellant's complaints were subject to dismissal for abuse of
the EEO process. See EEOC Appeal No. 01972171 (November 17, 1997).
The agency did not file a request to reopen this decision.
Accordingly, the Commission finds that the agency improperly dismissed
appellant's instant complaint. Consequently, the agency's FAD dated May
23, 1997, is VACATED and this matter is REMANDED to the agency, which
is directed to process the matter in accordance with the Commission's
prior Order in EEOC Appeal No. 01951625.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. In particular, the agency shall conduct a
supplemental investigation which shall include the following actions:
(1) The agency shall determine the agency official(s) responsible for
making the decision not to select appellant for the Defense Program
Fellowship and obtain a statement from such official(s). Additionally,
the agency shall obtain any other relevant evidence concerning this
issue, including who was selected, that individual's qualifications,
and why appellant was not selected.
(2) The agency shall afford appellant an opportunity to respond,
in writing, to all of the evidence gathered during this supplemental
investigation.
Thereafter, the agency shall issue a final decision. 29 C.F.R. �1614.110.
The supplemental investigation and issuance of the final decision must be
completed with forty-five (45) calendar days of the date this decision
becomes final. A copy of the final decision must be submitted 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:
Oct 30, 1998
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations