05990576
11-05-1999
Christine Sullivan, Appellant, Rodney E. Slater, Secretary, Department of Transportation, Agency.
Christine Sullivan, )
Appellant, )
) Request No. 05990576
) Appeal No. 01982700
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On April 6, 1999, Christine Sullivan (appellant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Christine Sullivan v. Rodney E. Slater,
Secretary, Department of Transportation, EEOC Appeal No. 01982700
(March 5, 1999). While EEOC regulation 29 C.F.R. �1614.407(a)
provides that the Commission may, in its discretion, reconsider any
previous Commission decision, 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, the Commission grants appellant's request.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed
the agency's dismissal of portions of appellant's complaint for failure
to timely contact an EEO Counselor, comply with the agency's request
for clarification, and timely raise matters with the EEO Counselor.
BACKGROUND
Appellant filed her complaint On November 25, 1997, alleging that her
immediate supervisor subjected her to sex discrimination through disparate
treatment, unfair management practices, defamation of character, and a
hostile work environment. In her chronology accompanying the complaint,
appellant provided a description of numerous events occurring between
February 1996 and October 1997, which she alleged supported her allegation
of discrimination.
Appellant clearly characterized her complaint as one of harassment
based on her sex. In accepting the complaint, however, the agency did
not frame the issue as harassment. Instead, the agency only accepted
the three most recent allegations of the overall harassment claim and
treated each as a separate allegation of discrimination. The agency
then dismissed one of the allegations for failure to state a claim.
The previous decision affirmed the dismissal and concluded that the
allegations relating to events occurring 45 days prior to her contacting
an EEO Counselor were untimely and not part of a continuing violation.
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 her request to reconsider, appellant reiterates, in effect,
that along with the accepted allegations the agency should investigate
all her allegations because together they constitute a pattern of
discrimination by her supervisor. Additionally, appellant contends
that the previous decision and the agency ignored her claim of hostile
environment harassment.
In considering appellant's continuing violation argument, we note that
it does not constitute new evidence that was unavailable at the time
the previous decision was issued. Accordingly, we find that appellant's
request for reconsideration as it relates to establishing a continuing
violation is denied. The Commission does find, however, that there is
sufficient justification to reconsider the agency's failure to address
appellant's harassment claim.
The Commission finds that the agency improperly framed the issue in this
case when it separated each of the timely counseled allegations into
distinct claims of discrimination without addressing appellant's hostile
environment harassment claim. When confronted with claims like this,
the agency cannot ignore the pattern aspect of the claims and define the
issues in a piecemeal manner. See Ferguson v. Department of Justice,
EEOC Request No. 05970792 (March 30, 1999); Meaney v. Department of the
Treasury, EEOC Request No. 05940169 (November 3, 1994). Therefore, we
direct the agency to process appellant's complaint as a single claim of
discrimination, and to treat each incident described in the complaint as
evidence that either supports or refutes her claim. The fact that some of
the allegations are untimely does not relieve the agency of its obligation
to investigate those incidents as background evidence to the extent that
they are relevant to appellant's hostile environment harassment claim.
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request meets the criteria of 29 C.F.R. �1614.407(c). It is therefore the
decision of the Commission to grant appellant's request. The decision
of the Commission in Appeal No. 01972700 (March 5, 1999) is REVERSED.
The agency shall process appellant's complaint in accordance our order
below. There is no further right of administrative appeal on the decision
of the Commission on a Request to Reconsider.
ORDER (E1092)
The agency shall accept for processing the following claim:
Whether the agency subjected appellant to a hostile work environment
because of sex (female) during the relevant time period.
The agency shall investigate appellant's allegations in accordance with
29 C.F.R. �1614.108. Those allegations untimely submitted for counseling
shall be investigated as background evidence as relevant to the harassment
claim. The agency shall acknowledge to appellant that it has received
the remanded complaint 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(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 (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 (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
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:
November 5, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat