05980338
12-10-1999
Kathleen A. McGah, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Kathleen A. McGah v. Department of Justice
05980338
December 10, 1999
Kathleen A. McGah, )
Complainant, )
)
v. ) Request No. 05980338
) Appeal No. 01955717
Janet Reno, ) Agency No. 033-079-X-3070
Attorney General, )
Department of Justice, )
Agency. )
______________________________)
DENYING REQUEST FOR RECONSIDERATION
On February 6, 1998, the Department of Justice (agency) initiated
a request to the Equal Employment Opportunity Commission (EEOC) to
reconsider the decision in Kathleen A. McGah v. Janet Reno, Attorney
General, Department of Justice, EEOC Appeal No. 01955717 (January 5,
1998).<0> EEOC Regulations provide that the Commissioners may, in
their 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. See 64 Fed. Reg. 37,644,
37,654 (1999) (to be codified and hereinafter referred to as 29
C.F.R. �1614.405(b)). For the reasons set forth herein, the agency's
request is denied.
ISSUE PRESENTED
The issue presented is whether the previous decision properly reversed
the agency's final decision.
BACKGROUND
This case has a lengthy procedural history dating back to February
1976, at which time the complainant was hired by the Federal Bureau of
Investigations (FBI) as a Special Agent. To qualify for that position,
the complainant was required to successfully complete New Agent Training
(NAT) at the agency's facility in Quantico, Virginia. Because the
complainant failed to qualify in the firearms and physical training
portion of the NAT, she was forced to resign from the agency on May 4,
1976.
On September 19, 1977, another female Special Agent (the Class Agent)
filed a class complaint on behalf of herself and other females who
had either held or applied for Special Agent positions. The complaint
challenged a number of agency policies, including the firearms and
physical training portion of the NAT. After a Complaints Examiner
recommended that the complaint be accepted, the agency issued a decision
dated January 26, 1978, accepting the complaint. The decision did not
make a definitive determination on the question of timeliness, and a
notice the complainant was sent in March 1978 states that the class had
been defined by the agency as "[a]ll current female Special Agents of
the FBI, all former female Special Agents of the FBI and all female
applicants for the position of Special Agent between May 12, 1972,
and February 9, 1978...."
Following a hearing in 1980, a Complaints Examiner (the CE) issued
a recommended decision finding discrimination in several areas.
In particular, the CE found that the firearms and physical training had a
disparate impact on female Special Agents. The agency thereafter issued a
decision dated July 24, 1981, in which it adopted the CE's recommendation
and found that those class members who had been forced to resign for
failing the firearms and physical training were entitled to reinstatement
with back pay. The decision, citing 29 C.F.R. �1613.614(c),<0> limited
this relief to those class members who resigned on or after May 7, 1977.
Although this excluded the complainant, she and the other class members
who resigned prior to May 7, 1977, were mailed notices of the agency's
decision with attached forms entitled "Claim for Individual Relief Form."
The complainant filed this form with the agency in September 1981.
The Class Agent appealed the agency's decision, which culminated in a 1986
Commission decision finding that the agency's definition of the class
had not put the Class Agent on notice that it only included Special Agents
who resigned on or after May 7, 1977. Christine A. Hansen v. Department of
Justice, EEOC Request No. 05850006 (February 6, 1986). For that reason,
the Commission found that those individuals who resigned prior to May
7, 1977, were entitled to an opportunity to obtain equitable tolling.
The decision directed the agency to make such a determination with
respect to each class member who resigned prior to that date.
By letter dated September 23, 1993, the complainant was informed by the
agency that, because her claim was untimely, she was not entitled to
any relief. The complainant thereafter requested a hearing before an
administrative judge (AJ) on behalf of herself and several other class
members whose claims for relief had been rejected. The AJ found that a
hearing was not appropriate and remanded the matter to the agency for
issuance of a final decision. The agency thereafter issued a final
decision (FAD) dated July 6, 1995, finding that the complainant's
claim for relief should be denied because she did not timely initiate
EEO counseling. The FAD found that, although the complainant resigned
from the agency on May 4, 1976, she did not attempt to file a complaint
until becoming involved with the class complaint over a year later.
The FAD noted that this was well beyond the 30-day period set forth at 29
C.F.R. �1613.214(a)(1)(i), and it rejected the complainant's argument
that she was unaware of that time period. Specifically, the FAD found
that there was sufficient evidence in the record to conclude that, at
the time the complainant was at Quantico, she suspected discrimination.
The complainant appealed and the prior decision reversed the FAD.
In particular, the decision found persuasive the complainant's argument
that, at the time she was at Quantico, she was unaware of the 30-day
time period. The decision found further that the agency, despite
being on notice of the complainant's argument that she was not aware
of the time period, had adduced no evidence demonstrating that she had
"constructive notice" of the time limits for contacting an EEO Counselor.
The decision also rejected the agency's implication that, because the
complainant suspected discrimination and did not take any action, her
claim should be barred under the doctrine of laches. In particular,
the decision reiterated that there was no evidence that the complainant
knew of the applicable time limit. The decision also found that, to the
extent the complainant became involved with the class complaint in 1978,
she had not waited an unreasonable amount of time to exercise her rights.
In support of its request to reconsider, the agency asserts that, contrary
to the prior decision's conclusion, there is sufficient evidence to impute
constructive knowledge of the 30-day time limit to the complainant.
Specifically, the agency has submitted affidavits from individuals who
were at Quantico during the period in question, several of whom recall
that EEO posters were posted. The agency has also submitted portions
of a handbook entitled "Manual of Rules and Regulations" (the Manual),
which it states was distributed to all Special Agent trainees. We note
that the Manual sets forth the 30-day period, and a Special Agent who
started in the class of trainees preceding the complainant's class
testified that he received a copy of the Manual. The agency contends
that, based on this evidence, constructive knowledge of the 30-day time
limit should be imputed to the complainant.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of
the criteria of 29 C.F.R. �1614.405(b) is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September 28,
1989). Furthermore, a request to reconsider is not "a form of second
appeal." Regensberg v. United States Postal Service, EEOC Request
No. 05900850 (September 7, 1990); Spence v. Department of the Army,
EEOC Request No. 05880475 (May 31, 1988).
In considering the agency's request, the Commission finds no basis for
disturbing the prior decision's conclusion that there was insufficient
evidence to impute constructive knowledge of the 30-day time period to
the complainant. Specifically, although several individuals testified
that EEO posters were present, none of these individuals stated that
the posters contained information regarding the time limitations period.
Additionally, although the Manual mentions the 30-day period, the agency
has not demonstrated that the complainant received a copy of the Manual.
Accordingly, because the agency has not satisfied the criteria necessary
for reconsideration, it is the decision of the Commission to deny the
request.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request fails to meet the criteria of 29 C.F.R. �1614.405(b).
Therefore, it is the decision of the Commission to DENY the request.
The decision in EEOC Appeal No. 01955717 (January 5, 1998) remains the
Commission's final decision. The agency is ordered to comply with the
order in that decision, as modified below. There is no further right
of administrative appeal on a decision of the Commission on this Request
for Reconsideration.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall send the complainant notice that it has received the
remanded claim. The agency shall thereafter process the complainant's
claim for relief in accordance with the regulations at 29 C.F.R. Part
1614. A copy of the notice sent to the complainant must be sent to the
Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be
codified and hereinafter referred to as 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)(Supp. V 1993). If the complainant
files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.409).
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:
12-10-99
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
01 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
02 That section provided, in effect, that relief in the context of
a class complaint is limited to those actions that occurred not more
than 135 days preceding the filing of the complaint. The regulations
at Part 1613 were superseded by the regulations at 29 C.F.R. Part 1614
effective October 1, 1992.