05970402
02-11-1999
Bettie J. Conley, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Bettie J. Conley v. Department of the Navy
05970402
February 11, 1999
Bettie J. Conley, )
Appellant, ) Request No. 05970402
) Appeal No. 01962682
v. ) Agency No. DON96499441003
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
________________________________)
GRANTING OF RECONSIDERATION
INTRODUCTION
On January 14, 1997, Bettie J. Conley (hereinafter referred to
as appellant) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision
in Conley v. Dep't of the Navy, EEOC Appeal No. 01962682 (December
11, 1996). EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must
submit written argument or evidence which 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 or regulation, or material fact,
or a 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). For the reasons
set forth herein, appellant's request is granted.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed
the dismissal of appellant's allegation on the grounds that it failed
to state a claim.
BACKGROUND
In November 1995, appellant filed an EEO complaint alleging discrimination
based on race (black), disability (mental), and reprisal discrimination
when: 1) she received a level 3 rating on her performance appraisal for
the period ending July 31, 1995, and 2) when the agency submitted false
and misleading information to the Department of Labor in connection
with her workers' compensation claim. Thereafter, the agency requested
additional information regarding allegation 2, i.e., identification of
those statements believed to be false and why they were false, and how
appellant was harmed by the false statements. In her written response,
appellant declined to identify the false statements.
In its final decision (FAD), the agency accepted allegation 1 for
processing but rejected allegation 2 for failure to cooperate and failure
to state a claim. Appellant appealed from the FAD. Upon review, the
previous decision affirmed the agency's rejection of allegation 2 on
the grounds that it represented a collateral attack on her workers'
compensation claim, and therefore failed to state a claim.
In her reconsideration request, appellant contended--inter alia--that
the previous decision failed to address her claim that the agency does
not controvert the workers' compensation claims of white employees.<1>
In response, the agency asserted that appellant's request failed to meet
the criteria for reconsideration and should be denied for that reason.
ANALYSIS AND FINDINGS
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 at least one of the criteria
of 29 C.F.R. �1614.407(c) is met. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
A review of the EEO counselor's report showed that appellant raised two
allegations regarding her workers' compensation claim: 1a) the agency
provided false and misleading information to the Department of Labor in
connection with her claim and 1b) that the agency controverts only the
workers' compensation claims of black employees.
An allegation that can be characterized as a collateral attack, by
definition, involves a challenge to another forum's proceeding, e.g.,
the grievance process, the unemployment compensation process, the workers'
compensation process, and so on. See, e.g., Fisher v. Dep't of Defense,
EEOC Request No. 05931059 (July 15, 1994)(challenge to agency's appeal
within the workers' compensation process fails to state a claim as an
EEO complaint); Lingad v. United States Postal Service, EEOC Request
No. 05930106 (June 23, 1994)(challenge to evidentiary ruling in grievance
process fails to state a claim as an EEO complaint).
The Commission has recognized very narrow exceptions to the general
prohibition on collateral attacks. See Ellis v. United States Postal
Service, EEOC Request No. 05920011 (March 12, 1992)(discriminatory
application of grievance process may state a claim). Thus, for example,
if an agency refused to accept grievances from all persons within a
protected class, that allegation would state a claim. We previously
have held that an allegation related to the discriminatory failure to
process a workers' compensation claim by failing to provide necessary
information to the Department of Labor states a claim. O'Neal v. United
States Postal Service, EEOC Request No. 05900620 (August 30, 1990).
The previous decision correctly determined that allegation 1a represented
a collateral attack on the manner in which the agency presented its
position in the OWCP forum, and dismissed the allegation for that reason.
See Lau v. Nat'l Credit Union Administration, EEOC Request No. 05950037
(March 18, 1996)(proper forum regarding the manner in which the agency
represented its position in the OWCP forum is the workers' compensation
process).
The previous decision, however, did not address allegation 1b. Therein,
appellant alleged disparate treatment with respect to the agency's
controversion of workers' compensation claims, i.e., the agency
controverts the claims of black employees but not those of white
employees. The Commission finds that allegation 1b states a claim under
the regulations. On remand, the agency shall process allegation 1b in
accordance with the Order below.
CONCLUSION
After a review of appellant's request for reconsideration, the agency's
response, the previous decision, and the entire record, the Commission
finds that appellant's request for reconsideration meets the criteria of
29 C.F.R. �1614.407(c), and the request hereby is GRANTED. The decision
in EEOC Appeal No. 01962682 hereby is REVERSED.
ORDER (E1092)
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 thirty (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 one hundred fifty (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 sixty
(60) days of receipt of appellant's request.
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
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:
Feb. 11, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 Appellant also contended that she was forced to apply for workers'
compensation because the agency refused to accommodate her disability
by reassigning her. In her response to the agency's brief, appellant
appeared to indicate that she provided this information as background to
explain why she had filed a workers' compensation claim. If she has not
already done so, appellant is advised to contact an EEO counselor if she
wishes to pursue this matter, i.e., the agency's failure to accommodate her.