0520110176
04-28-2011
Charmaine L. Anderson, Complainant, v. Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission, Agency.
Charmaine L. Anderson,
Complainant,
v.
Gregory B. Jaczko,
Chairman,
Nuclear Regulatory Commission,
Agency.
Request No. 0520110176
Appeal No. 0120080706
EEOC No. 531-2007-00154X
Agency Nos. NRC-06-11, NRC-07-02
DENIAL
Complainant timely requested reconsideration of the decision in Charmaine
L. Anderson v. Nuclear Regulatory Commission, EEOC Appeal No. 0120080706
(November 18, 2010). EEOC Regulations provide that the Commission may,
in its discretion, grant a request to reconsider any previous Commission
decision where the requesting party demonstrates that: (1) the appellate
decision involved a clearly erroneous interpretation of material fact
or law; or (2) the appellate decision will have a substantial impact on
the policies, practices, or operations of the agency. See 29 C.F.R. �
1614.405(b).
ISSUE PRESENTED
The issue presented is whether Complainant met the criteria for
reconsideration by demonstrating that the appellate decision: (1)
involved a clearly erroneous interpretation of material fact or law;
or (2) will have a substantial impact on the policies, practices, or
operations of the Agency.
BACKGROUND
In the underlying case, Complainant raised seven separate claims of
harassment and discrimination on the bases of race (African-American),
disability (visual impairment), and reprisal for prior protected
EEO activity. In a Partial Acceptance Letter dated July 21, 2006, the
Agency accepted claims 4 - 7 for investigation and dismissed claims 1 -
3, pursuant to
29 C.F.R. � 1614.107(a)(1), because Complainant had previously withdrawn
an informal complaint consisting of the same claims.
The Commission affirmed the Agency's final decision. As to the
dismissed claims, the appellate decision found that the Agency's
dismissal was proper. Complainant maintained that she was coerced
into withdrawing her informal complaint because an EEO Official did not
inform her that she could have continued with her complaint while she had
"medical uncertainties." However, the appellate decision found that
such conduct was not coercion and that Complainant's e-mails revealed
that she knowingly and voluntarily withdrew her informal complaint.
Although Complainant contended that the EEO Counselor's Report was
missing two out of eleven pages, the appellate decision found that it
was "harmless error" because Complainant did not show that it harmed
her ability to litigate her claims. As to the accepted claims, the
appellate decision found that Complainant failed to establish that the
Agency discriminated against her as alleged.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant asserted that the
appellate decision involved a clearly erroneous interpretation of
material fact or law because the Agency tampered with her case file and
deliberately destroyed evidence.
First, Complainant argued that a Civil Rights Program Manager (PM)
illegally switched her EEO Counselor's Report to grant a partial
investigation of some of her claims instead of a full investigation of
all of her claims. In support of her argument, Complainant asserted
that, despite the EEO Counselor (EC) telling her she was granting a
full investigation, the EEO Counselor's Report in the record granted
only a partial investigation. Complainant referred to a June 14,
2006 Fax Transmittal Cover Sheet in which EC wrote, "Attached is the
EEO Counselor's Report for [Complainant]." Complainant asserted that
the document shows that EC faxed the report, but that EC's report was
not placed in her case file and PM substituted another report instead.
Complainant asserted that PM's actions were not "harmless error" as
stated in the appellate decision because, if PM had not changed the EEO
Counselor's Report, all the claims she raised would have been investigated
and substantiated by the Investigator.
Second, Complainant argued that PM discarded evidence out of her case file
such as attachments, e-mails, and other documentation. In support of her
argument, Complainant asserted that the Agency "validated" her allegations
that the documents were deliberately destroyed when it mentioned the
missing documents in a September 6, 2007 letter outlining its efforts
to locate and provide the documents that Complainant maintained were
missing.
In response, the Agency asserted that Complainant's arguments are
a repackaged second appeal to the Commission, which repeats the same
unsupported allegations and arguments she made in support of her original
appeal.
ANALYSIS AND FINDINGS
The requesting party must submit any supporting documents or brief at
the time the request is filed. Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � VII (Nov. 9,
1999). Complainant filed the request for reconsideration on December 6,
2010 and filed a rebuttal to the Agency's response on December 31, 2010.
We decline to consider Complainant's statement submitted on December 31,
2010, as it was untimely pursuant to EEO MD-110.
Upon review, we find that Complainant's request does not establish that
the appellate decision involved a clearly erroneous interpretation
of material fact or law, or that the appellate decision will have
a substantial impact on the policies, practices, or operations of
the Agency. We note that Complainant made similar arguments on
appeal involving Agency tampering and remind her that a "request for
reconsideration is not a second appeal to the Commission."
EEO MD-110, at Ch. 9, � VI.A.
As to her first argument, we note that Complainant appears to be confusing
the June 14, 2006 EEO Counselor's Report with the Agency's July 21,
2006 Partial Acceptance Letter. In her request for reconsideration,
Complainant referenced "Attachment 9, Page 2" and wrote, "There was a
major problem when I finally received [EC]'s report granting me a full
investigation - it wasn't her report. It was [PM]'s report granting me
a partial investigation." A review of "Attachment 9, Page 2" reflects
that it is the Agency's July 21, 2006 Partial Acceptance Letter, not the
EEO Counselor's Report. Although Complainant argued that PM "switched"
the EEO Counselor's Report in order to grant her a partial investigation
instead of a full investigation, we emphasize that the EEO Counselor's
Report is a completely separate document from the Agency's Partial
Acceptance Letter.
EEO MD-110 describes in detail the procedures that must be followed when
processing complaints of discrimination filed by federal employees.
The language in EEO MD-110 clearly indicates that the role of the EEO
Counselor does not include determining what claims are accepted for
investigation. EEO MD-110 states, "The Counselor must submit to the
office designated to accept formal complaints and to the complainant the
report of inquiry ... Within reasonable time after receipt of the written
report from the EEO Counselor, the agency should send the complainant a
second letter (commonly referred to as an 'acceptance' letter), stating
the claims asserted and to be investigated. EEO MD-110, at Ch. 2,
� VII and Ch. 5, � I.
A review of the record reflects that the June 14, 2006 EEO Counselor's
Report is signed by EC. In addition, based on the fax headers on the June
14, 2006 Fax Transmittal Cover Sheet and the June 14, 2006 EEO Counselor's
Report, it appears that both were part of the same facsimile transmission
from EC. There is no evidence that the EEO Counselor's Report sent by
EC is not the EEO Counselor's Report in the record. To the extent that
Complainant argued that her claims were improperly dismissed in the July
21, 2006 Agency Partial Acceptance Letter, we reiterate the appellate
decision's finding that the dismissal was proper because she knowingly
and voluntarily withdrew her informal complaint.
As to her second argument, we disagree with Complainant's assertion
that the Agency "validated" her allegations that the documents were
deliberately destroyed in its September 6, 2007 letter. In that letter,
the Agency acknowledged that it could not find the attachments to ROI
Exhibit 12 (March 31, 2006 letter) that Complainant claimed were missing.
However, the Agency also noted the following: "Complainant continues
to argue that the missing attachments are proof that her case has been
'tampered' with. The fact that two independent offices, SBCR and OIG
... have the March 31 letter but do not have the attachments indicates
that Complainant may be confused about what documentation she has
provided, rather than proof of 'tampering' of the Complainant's case."
Based on the above, we note that the Agency's response does not "validate"
Complainant's allegations that the documents were deliberately destroyed.
CONCLUSION
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY
the request. The decision in EEOC Appeal No. 0120080706 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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
with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____4/28/11_____________
Date
2
0520110176
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110176