05970023
10-08-1998
Sylvia M. Franklin, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Sylvia M. Franklin v. Department of the Treasury
05970023
October 8, 1998
Sylvia M. Franklin, )
Appellant, )
) Request No. 05970023
v. ) Appeal No. 01954907
) Agency No. 95-2094
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
)
GRANT OF REQUEST FOR RECONSIDERATION
On October 1, 1996, Sylvia M. Franklin (hereinafter referred to as the
appellant) timely initiated a request to the Equal Employment Opportunity
Commission (the Commission) to reconsider the decision in Sylvia
M. Franklin v. Robert E. Rubin, Secretary, Department of the Treasury,
EEOC Appeal No. 01954907 (September 5, 1996). EEOC regulations provide
that the Commissioners may, in their discretion, reconsider any previous
decision. 29 C.F.R. �1614.407(a). A party requesting reconsideration
must submit written argument or evidence which tends to establish one or
more of the following 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); 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, the
appellant's request is granted.
The issue presented is whether the previous decision properly determined
that the agency correctly dismissed one of appellant's allegations.
Appellant contacted an EEO counselor on December 8, 1994, and filed
her formal complaint on January 14, 1995, alleging discrimination based
on race and sex with regard to ten allegations occurring from January
1993 to October 27, 1994. The previous decision, inter alia, affirmed
the agency's dismissal of allegation no. 9 (no. 9) for untimely EEO
contact.<1> With regard to no. 9, appellant claimed that she did not
learn that her position as acting foreman had not expired in July 1993,
as she had been informed at the time, until she met with the Assistant
General Manager (S1) on October 24, 1994.
Appellant and several male employees had been chosen through the agency's
assessment center as acting foremen to serve on an as- needed basis.
Appellant alleged that she was treated differently than the males, because
several male employees continued to work as acting foremen beyond July
1993, while she was told her position had ended. Appellant also stated
that two males continued as acting foremen past July 1993 until they
were promoted to other jobs and that she was not allowed to fill in for
them upon their promotions. The previous decision found that the claim
in no. 9 was a discrete incident and that appellant should reasonably
have suspected discrimination prior to mid-October 1994, or more than
45 days before she contacted an EEO counselor.
In her request for reconsideration (RTR), appellant contends that she
could not have known of the discrimination before October 24, 1994,
when S1 told her that her position had not, in fact, expired. In an
affidavit appended to her RTR, appellant describes her actions and that
she relied on management's assertions that her position had expired.
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence that tends to establish at least one of the criteria of 29
C.F.R. �1614.407(c). Having reviewed the record and submissions of
the parties, we find that appellant's request meets the criteria of 29
C.F.R. �1614.407(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) required that appellant bring
her complaint to the attention of an EEO counselor within 45 days of the
alleged discriminatory event. The regulations provide that the 45-day
time period may be extended where complainant shows, inter alia, that
she reasonably did not have knowledge that the discrimination occurred.
29 C.F.R. �1614.105(a)(2).
With regard to the instant matter, appellant has asserted that she
was unaware that her acting position had not expired until October 24,
1994. We find that, after a thorough review of the record, appellant
could not have reasonably suspected discrimination until that time.
29 C.F.R. �1614.105(a)(2). Since she contacted an EEO counselor within
45 days, her EEO contact is timely.
For the above reasons, the Commission finds that appellant's request
meets the regulatory criteria of 29 C.F.R. �1614.407(c). Accordingly,
the Commission grants appellant's request to reconsider the previous
decision. Upon reconsideration, the Commission finds that appellant's
EEO contact with regard to no. 9 was timely.
CONCLUSION
After a review of the appellant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the appellant's request meets the criteria of 29 C.F.R. �1614.407(c).
It is therefore the decision of the Commission to grant the appellant's
request. The decision in EEOC Appeal No. 01954907 (September 5, 1996)
is MODIFIED with regard to Allegation No. 9. There is no further right
of administrative appeal on a decision of the Commission on a Request for
Reconsideration. The agency is directed to comply with the Order, below.
ORDER
The agency is ORDERED to take the following actions:
A. The agency shall conduct an inquiry sufficient to enable it to
determine whether allegations 1, 2, and 4-8, were timely raised with an
EEO Counselor with specific consideration as to whether the remanded
allegations constitute a continuing violation. The agency, within
forty-five (45) calendar days of the date this decision is received,
shall issue a final agency decision accepting/dismissing allegations 1,
2, and 4-8. A copy of the agency's final decision must be sent to the
Compliance Officer as referenced herein.
B. In conjunction with the allegations accepted pursuant to A., above,
the agency shall process allegations 3, 9, and 10 in accordance with
29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has accepted allegations 3, 9, and 10, and those accepted
pursuant to A., above, within sixty (60) calendar days of the date this
decision is received. 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 is received, 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.
C. 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.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
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
1The agency dismissed all allegations for failure to state a claim and/or
for untimely EEO contact. The previous decision vacated the agency's
dismissal of allegations nos. 3 and 10 and remanded allegations nos. 1,
2, and 4-8 for consideration as a continuing violation.