05980127
06-24-1999
Charles L. Burgett, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Charles L. Burgett v. Department of the Treasury
05980127
June 24, 1999
Charles L. Burgett, )
Appellant, )
)
v. ) Request No. 05980127
) Appeal No. 01972737
Robert E. Rubin, ) Agency No. 97-4006
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DECISION ON REQUEST FOR RECONSIDERATION
On November 14, 1997, the Department of the Treasury (agency) initiated
a request to the Equal Employment Opportunity Commission (EEOC) to
reconsider the decision in Charles L. Burgett v. Robert E. Rubin,
Secretary, Department of the Treasury, EEOC Appeal No. 01972737
(October 15, 1997). 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, regulation or material fact, or
misapplication of established policy, 29 C.F.R. �1614.407(c)(2); and the
previous 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, it is the decision of the Commission to deny the agency's
request but to reconsider the prior decision on its own motion.
ISSUE PRESENTED
The issue presented is whether the previous decision properly remanded
one of the allegations raised by appellant.
BACKGROUND
Appellant filed a formal complaint in October 1996 alleging discrimination
based on race (Black) and sex (male) when:
1) on May 31, 1996, he was not selected for the position of Lead Tax
Examining Assistant under vacancy announcement number 01367T6;
2) he was issued a cautionary letter dated May 14, 1996;
3) he was issued more cases than other Tax Examining Assistants;
4) he was counseled orally and in writing on July 17, 1996, and August
21, 1996;
5) the agency breached a settlement agreement;
6) he received an oral counseling on June 28, 1996;
7) the agency's EEO office interferes with the EEO process; and,
8) management has a pattern of harassing and retaliating against him.
The agency thereafter issued a final decision accepting Issues 1 through
4 and dismissing Issues 5 through 7. Issue 5 was dismissed for stating
the same claim as one that had already been decided while Issues 6 and
7 were dismissed for failure to state a claim.
The FAD did not address Issue 8.
Appellant appealed and the prior decision affirmed the dismissal of Issues
5 and 7 and reversed the dismissal of Issue 6. Although the decision
did not explicitly address Issue 8, it found that Issue 6 should be
processed insofar as appellant had alleged that the action set forth
in that issue, along with the actions set forth in Issues 1 through 4,
constituted a pattern of harassment.
ANALYSIS AND FINDINGS
As discussed above, 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 any of
the criteria of 29 C.F.R. �1614.407 is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September 28,
1989). Furthermore, a request to reconsider is not "a form of second
appeal." Regensberg v. United States Postal Service, EEOC Request
No. 05900850 (September 7, 1990); Spence v. Department of the Army,
EEOC Request No. 05880475 (May 31, 1988).
In support of its request to reconsider, the agency's primary argument
is that appellant has not alleged facts sufficient to establish an
objectively hostile and abusive working environment. In making this
argument, the agency asserts that Issue 6, by itself, does not rise to
the level of an actionable claim of harassment. This assertion appears
to be based on the prior decision's order, which implies that the agency
should process Issue 6 as a separate issue.<0> That was clearly not
the intent of the prior decision, however, as it correctly determined
that appellant's harassment allegation was comprised of the incident
set forth in Issue 6 as well as the incidents set forth in Issues 1
through 4. In this regard, the Commission finds that these incidents,
when considered in their entirety, are sufficient to state a claim
of harassment. See Cobb v. Department of the Treasury, EEOC Request
No. 05970077 (March 13, 1997). Therefore, it is the decision of the
Commission to deny the agency's request. We will, however, reconsider
the prior decision on our own motion to modify the decision's order
to reflect that, in processing appellant's harassment allegation, the
agency should consider the incidents set forth in Issues 1 through 4
and 6. See 29 C.F.R. �1614.407(a).
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, it is the decision of the Commission
to DENY the request but to reconsider the prior decision on its own
motion. The decision in EEOC Appeal No. 01972737 (October 15, 1997)
is MODIFIED. The agency shall comply with the Order in that decision,
as modified below. There is no further right of administrative appeal
from a decision of the Commission on a request for reconsideration.
ORDER
The agency is ORDERED to process appellant's allegation that he was
discriminatorily harassed based on the incidents set forth in Issues 1
through 4 and 6 in accordance with 29 C.F.R. �1614.108. The agency shall
acknowledge to 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 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 (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 24, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
01 The Commission agrees with the agency that the incident set forth in
Issue 6 is not, by itself, sufficiently severe or pervasive to state a
claim of harassment. See Harris v. Forklift Systems, 510 U.S. 17 (1993).