05980489
06-11-1999
Alceo A. Grappone, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency,
Alceo A. Grappone v. Department of the Navy
05980489
June 11, 1999
Alceo A. Grappone, )
Appellant, )
)
v. ) Request No. 05980489
) Appeal No. 01964458
Richard J. Danzig, ) Agency No. DON-96-0062-004
Secretary, )
Department of the Navy, )
Agency, )
)
DECISION ON REQUEST FOR RECONSIDERATION
On March 9, 1998, the agency timely initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in Alceo
A. Grappone v. John H. Dalton, Secretary, Department of the Navy, EEOC
Appeal No. 01964458 (February 5, 1998), which it received on February
18, 1998. 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 three criteria
prescribed by 29 C.F.R. �1614.407(c): that new and material evidence
was available that was not available when the previous decision was
issued, 29 C.F.R. � 1614.407(c)(1); that the previous decision involved
an erroneous interpretation of law or regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. � 1614.407(c)(2);
or that the decision is of such exceptional nature as to have substantial
precedential effects, 29 C.F.R. � 1614.407(c)(3). For the reasons set
forth below, the Commission grants the agency's request.
Appellant contacted an EEO counselor on December 13, 1995, and later
filed a complaint in which he alleged that the agency discriminated
against him on the bases of age and reprisal when:
On August 1, 1994, his employment was changed from a regular part-time
to a flexible work schedule; and
In early December 1995, he was notified that he would be terminated,
effective December 19, 1995.
The agency issued a final decision dismissing allegation (1) for untimely
counselor contact and allegation (2) for failure to state a claim.
The previous decision reversed the agency's decision and remanded both
allegations for processing. In its request for reconsideration, the
agency argues that the previous decision's remand of allegation (1)
constituted an erroneous interpretation of material fact. The agency
does not challenge the remand of allegation (2).
With respect to allegation (1), the agency argues that the previous
decision erred in listing the date as August 1, 1995. We agree.
The counselor's report, the complaint, the final agency decision, and
appellant's own correspondence clearly establish the date of allegation
(1) as August 1, 1994. We also agree with the agency that sixteen months
is too long of a time interval to support an inference of a continuing
violation consisting of only two incidents. We therefore find that the
agency properly dismissed allegation (1) for untimely contact with an
EEO counselor. This finding does not, however, relieve the agency of
its responsibility to thoroughly investigate all of the circumstances
that may be relevant to allegation (2), regardless of whether appellant
expressly raises them. See EEOC Management Directive 110 5-4 (October 22,
1992). Accordingly, if allegation (2) is still being investigated, then
the agency shall also investigate allegation (1) as background evidence
to the extent it is probative of appellant's removal in December 1995.
See Silva v. United States Postal Service, EEOC Request No. 05960115
(June 20, 1996).
After a review of the agency's request to reconsider, appellant's
response thereto, the previous decision, and the entire record, the
Commission finds that the agency's request meets the criteria of 29
C.F.R. �1614.407(c). It is therefore the decision of the Commission
to grant the agency's request. The decision of the Commission in EEOC
Appeal No. 01964458 is reversed as to its remand of allegation (1) and
affirmed as to its remand of allegation (2). The agency shall process
allegation (2) in accordance with the order in Appeal No. 01964458,
as modified below. There is no further right of administrative appeal
from a decision of the Commission on request for reconsideration.
ORDER (E1092)
To the extent that it has not already done so, the agency shall process
allegation (2) in accordance with 29 C.F.R. �1614.108. The agency
shall acknowledge to the appellant that it has received the remanded
allegations within thirty (30) calendar days of the date that it
receives this decision. 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 that it
receives this decision, 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 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 (Q0993)
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 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:
June 11, 1999
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat