05960747
10-23-1998
Patricia J. Gordon, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, (Internal Revenue Service) Agency.
Patricia J. Gordon v. Department of the Treasury
05960747
October 23, 1998
Patricia J. Gordon, )
Appellant, )
)
v. ) Request No. 05960747
) Appeal No. 01954290
Robert E. Rubin, ) Agency No. 95-4037
Secretary, )
Department of the Treasury, )
(Internal Revenue Service) )
Agency. )
)
DECISION TO RECONSIDER
On October 29, 1996, the agency timely initiated a request to the Equal
Employment Opportunity Commission (Commission) to reconsider the decision
in Gordon v. Department of the Treasury, EEOC Appeal No. 01954290 (June
27, 1996). EEOC regulations provide that the Commission may, in its
discretion, reconsider any previous 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 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).
The agency's request to reconsider is denied. The Commission on its
own motion, however, reconsiders the previous decision, in part.
ISSUE PRESENTED
Whether the Commission should affirm a portion of the agency's final
decision that dismissed part of the appellant's complaint for stating the
same claim that was pending before or had been decided by the agency,
and whether another part of the complaint is subject to dismissal on
the same grounds.
BACKGROUND
The appellant filed a complaint in December 1994 alleging, in relevant
part, that she was discriminated against on the bases of her sex,
age (date of birth 6/17/42), disability (attention deficit disorder
(ADD) and an unidentified perceived mental disability) and reprisal
for EEO activity when (1) the agency failed to provide her reasonable
accommodation by, inter alia, not allowing her to tape record office
meetings, not providing her with written follow-up of verbal instructions,
and refusing her request for once-a-week 15-minute planning reviews,
and (2) the agency proposed to deny her within-grade increase.
The agency dismissed allegation 1 on the grounds that it stated the same
claim that was pending before or had been decided by the agency. It found
that it previously accepted the same issue for investigation pursuant
to complaint 94-2103. The previous decision reversed the dismissal, in
relevant part, because the agency did not provide documentation supporting
the dismissal. In its request for reconsideration, the agency submits the
referenced documentation, which shows that pursuant to complaint 94-2103,
it accepted the general allegation that the appellant was discriminated
against when she was not reasonably accommodated.
With regard to allegation 2, the record reflects that the agency issued
the appellant a "Notice of Unacceptable Level of Competence Which Could
result in Denial of Within-Grade Increase" dated September 1, 1994.
It postponed her within-grade increase. The agency dismissed allegation
2 on procedural grounds, and the previous decision reversed. In its
request for reconsideration, the agency indicates that in January 1996
it accepted complaint 95-4274 by the appellant regarding the actual
denial of the within grade increase in June 1995. It indicates that
allegation 2 is subsumed into that complaint.
A review of appeals with the Commission reveals that the appellant has
appealed final agency decisions on complaints 94-2103 and 95-4274.<1>
Complaint 95-4274 is now designated by the agency as complaint 95-4274M.
The final agency decisions found no discrimination. The final agency
decision on complaint 94-2103 covered alleged discrimination occurring
between June 1993 and December 1993. The final agency decision on
complaint 95-4274M, at Footnote 9, indicated that the September 1994
postponement of the appellant's within-grade increase "is not a part of
the instant complaint."
ANALYSIS AND FINDINGS
In order to prompt the Commission to reconsider the previous decision,
the agency must present evidence or argument that satisfies one of the
criteria of 29 C.F.R. �1614.407. After considering the agency's request,
we find that it has not satisfied the criteria for reconsideration.
However, the Commission on its own motion reconsiders the previous
decision, in part.
The Commission finds that documentation submitted by the agency with
its request for reconsideration is not new and material evidence that
was not readily available when the previous decision was issued. In any
event, the final decision on complaint 95-4274M explicitly stated that
the postponement of the appellant's within-grade increase in September
1994 (allegation 2) was not an issue in that complaint, undermining
the agency's argument that it was. Thus, the Commission finds that the
agency must process that allegation.
Nevertheless, the Commission, on its own motion, reconsiders the previous
decision, in part. A portion of allegation 1 states the same claim in
prior complaint 94-2103 that has been decided by the agency. Allegation
1 of the instant complaint alleged in part that the agency failed to
reasonably accommodate the appellant's ADD when it did not permit her to
tape record meetings in the office and she was placed at a distracting
desk for a month. The final agency decision on 94-2103 reflects that
these incidents were addressed in the adjudication of that complaint.
With regard to tape recording, the final agency decision on complaint
94-2103 found that the appellant's request to tape record a meeting with
her branch chief in December 1993 was not to accommodate the appellant's
ADD, but was probably because she mistrusted management, since she stated
she did not need to tape record meetings with taxpayers. In the instant
complaint, the appellant alleged that the Job Accommodation Network
(JAN) recommends tape recording longer or important meetings as an
accommodation for ADD, but she did not need to tape record meetings in
the field.<2> Likewise, in the investigation of prior complaint 94-2103,
the appellant averred that tape recording was one of the most frequently
listed suggested accommodations for ADD. The agency's continued refusal
to allow the appellant to tape record meetings, given that she did not
allege changed circumstances, does not state a new claim.
The remaining portion of allegation 1 did not cover the same alleged
denials of accommodations covered in complaint 94-2103. Accordingly,
the remainder of allegation 1 does not state the same claim stated
in prior complaint 94-2103, and the agency's decision to dismiss this
portion of allegation 1 is reversed.
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. �1613.407(c). It is
therefore the decision of the Commission to deny the agency's request.
The Commission on its own motion reconsider's the previous decision,
in part. The decision of the Commission in EEOC Appeal No. 01954290
is modified. The agency's decision to dismiss allegation 1 is affirmed
in part and reversed in part, and its decision to dismiss allegation 2
is reversed.
ORDER
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within 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 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 60 days of receipt of appellant's
request.
A copy of the agency's letter of acknowledgment 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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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. If you
file a request to reconsider and also file a civil action, 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. 23, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat
1A request for reconsideration is pending on the first appeal, and the
second appeal is pending. The EEOC docket numbers, respectively, are EEOC
Request No. 05980389 and EEOC Appeal No. 01973218.
2In a "chronology of events" submitted with EEOC Appeal No. 01973218,
the appellant wrote that tape recording is the second or third most
suggested accommodation on any ADD accommodation list, including that of
the JAN, and stated she gave management a list of possible accommodations
in December 1993.