01992457_r
06-02-1999
Anne L. Ayers, Appellant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.
Anne L. Ayers, )
Appellant, )
)
v. ) Appeal No. 01992457
) Agency No. NCN-95-HQs-A034
Daniel S. Goldin, )
Administrator, )
National Aeronautics and )
Space Administration, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., the Age Discrimination in Employment Act of
1967, as amended (ADEA), 29 U.S.C. �621 et seq. and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq. The final
decision was issued on December 30, 1998. The appeal was postmarked
January 30, 1999. Accordingly, the appeal is considered timely<1>
(see 29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC
Order No. 960, as amended.
On July 30, 1995, appellant filed a formal complaint, alleging that she
was the victim of unlawful employment discrimination on the bases of age,
sex, and disability.
On February 9, 1996, the agency issued a final decision. Therein,
the agency determined that appellant's complaint was comprised of
three allegations: allegation 1 was divided into twelve sub parts and
allegation 3 was divided into seven sub parts. Allegations 1 and 3 are
comprised of a variety of incidents relating to alleged harassment by
an agency Director, that include badgering appellant at home while she
was on sick leave; reprimanding her; using support staff to eavesdrop on
conversations; turning off her air purifier; and requiring her to work
on an outdated computer. Allegation 2 addresses continual harassment by
failing to provide appellant with reasonable accommodation. The agency
accepted allegation 1 for investigation, and dismissed allegations 2 and
3 on the grounds that appellant raised the matters in previously filed
EEO complaints.
On appeal, appellant argued that the agency misdefined the July 30, 1995
complaint by �omitt[ing] major claims of discrimination, limit[ing] people
against whom I am claiming discrimination, and [making misstatements]
of facts.� Appellant listed over seventy-five allegations that were not
included or that were inadequately included in her complaint. Moreover,
appellant argued that some allegations were incorrectly included in
the complaint. Appellant also argued that allegations 2 and 3 were
improperly dismissed.
The Commission affirmed the agency's definition of the matters raised in
allegation 1, and affirmed the agency's decision to dismiss allegations 2
and 3. The Commission also vacated the agency's decision to dismiss
additional allegations from the framing of appellant's complaint.
The Commission remanded the additional allegations as set forth by
appellant on appeal to the agency for further processing. Specifically,
the Commission ordered the agency to provide appellant with the
opportunity to explain how the additional allegations listed by her on
appeal differ in any meaningful way from the agency's framing of the
complaint. The Commission further ordered that appellant be provided
with the opportunity to explain to the agency exactly where she raised
the additional allegations in the complaint. The Commission stated that
within sixty days of the date its decision became final, the agency should
reissue a final decision defining the complaint; that if the agency did
not include appellant's additional allegations in the framing of the
complaint, the agency should specifically explain how the additional
allegations were not raised in the complaint, or how the additional
allegations were the same as the allegations already defined as being
part of the instant complaint. Ayers v. NASA, EEOC Appeal No. 01963007
(July 12, 1996); request to reconsider denied, EEOC Request No. 05960759
(October 1, 1998).
By letter dated October 20, 1998, and received by appellant on October
24, 1998, the agency requested that appellant explain how the additional
allegations listed in her appeal from the agency's decision of February
9, 1996, differ in any meaningful way from the agency's framing
of her complaint. The agency also requested that appellant explain
exactly where she raised the additional allegations in her complaint.
The agency stated that appellant was to respond within fifteen calendar
days of the date of receipt of the agency's letter; and that her failure
to timely respond would result in the re-delineation of the allegations
in her complaint based upon information provided in her prior appeal.
On December 23, 1998, the agency issued the final decision that is the
subject of the instant appeal. The agency first noted that by letter
dated October 20, 1998, appellant was requested to identify additional
allegations of discrimination. The agency further noted that on November
6, 1998, appellant requested and was granted an extension of time in
which to provide a response. The agency also found that on November 24,
1998, appellant informed an agency official by telephone that she was
unable to provide a response until the agency first explained how it
decided that the matters raised in appellant's formal complaint were
duplicative of matters raised in prior complaints.
The agency determined that because appellant provided no additional
information, the re-delineation of the matters raised in appellant's
formal complaint was based on a review of materials presently in the
record and that, as a consequence, the agency could not re-delineate
appellant's complaint in any manner that differed from its identification
of the issues in its February 9, 1996 final decision. The agency
therefore identified appellant's complaint as being comprised of the
three allegations previously identified in its decision of February 9,
1996, indicated that allegation 1 was accepted for investigation, and
that the matters raised in allegations 2 and 3 were raised by appellant
in previously filed EEO complaints.
On appeal, appellant argues that the agency improperly framed the
allegations raised in her complaint.
In response, the agency first argues that appellant failed to timely
respond to the agency requests for additional information regarding the
allegations raised in her formal complaint, pursuant to the Commission's
order of October 1, 1998. Second, the agency argues that appellant's
contention that the agency has continually failed to consider all
her allegations is without merit. The agency notes that appellant
contends that the agency failed to consider seventy-five allegations, and
identified each of the allegations. The seventy-five allegations consist
of a range of alleged discriminatory events that include incidents of
harassment, disciplinary actions, ignoring requests from her physicians,
given incomplete and inconsistent disability accommodations, issuance of
unclear and incomprehensible instructions, being inappropriately referred
to as �ma'am,� and not being provided adequate clerical assistance.
The agency argues that all matters raised in the seventy-five allegations
have been incorporated into the three allegations identified in its
final decision of February 9, 1996, and re-identified in the instant
final decision.
The Commission previously vacated the agency's decision to dismiss
additional allegations from the framing of appellant's complaint;
and ordered the agency to provide appellant with the opportunity to
explain how the additional allegations that were listed on appeal from
the agency's decision of February 9, 1996, differed in any meaningful
way from the agency's framing of the complaint. The record reflects
that subsequent to the Commission's order of October 1, 1998, the agency
provided appellant with such an opportunity, and that appellant failed
to timely respond to the agency's request. We therefore determine
that allegations 1 - 3, as identified by the agency in its decision
of December 23, 1998, properly correspond to the issues raised in
appellant's formal complaint. In the Commission's prior decision,
the agency's identification of the matters raised in allegation 1 and
its decision to dismiss allegations 2 and 3 was affirmed. The agency's
determination with respect to allegations 1 - 3 will not, therefore,
be revisited in the instant case.
Accordingly, the Commission's determines that the agency's framing of
the issues in appellant's complaint was proper and is AFFIRMED.
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 (S0993)
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 2, 1999
DATE Carlton M. Hadden, Acting Director
1 The dismissal of a complaint or a portion of a complaint may
be appealed to the Commission within thirty (30) calendar days of
the date of the complainant's receipt of the dismissal or final
decision. See 29 C.F.R. �1614.402(a). Because the agency failed
on appeal to supply a copy of the certified mail receipt or any
other material capable of establishing that date, the Commission
presumes that the appeal was filed within thirty (30) calendar
days of the date of appellant's receipt of the final decision.