05980879
03-29-2000
Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
v. Department of the Army
05980879
March 29, 2000
)
Complainant, )
) Request Nos. 05980879
v. ) 05981001
) 05981079
Louis Caldera, ) Appeal Nos. 01976148
Secretary, ) 01973669
Department of the Army, ) 01975283
Agency. )
)
DECISION ON REQUESTS FOR RECONSIDERATION
________ (hereinafter referred to as complainant) timely initiated
requests to the Equal Employment Opportunity Commission (Commission)
to reconsider the decisions in ________ v. Robert M. Walker,
Acting Secretary, Department of the Army, EEOC Appeal No. 01976148
(May 27, 1998); ________ v. Robert M. Walker, Acting Secretary,
Department of the Army, EEOC Appeal No. 01973669 (July 8, 1998); and
________ v. Robert M. Walker, Acting Secretary, Department of
the Army, EEOC Appeal No. 01975283 (July 30, 1998).<1> EEOC Regulations
provide that the Commissioners may, in their discretion, reconsider any
previous decision where the party demonstrates that: (1). the previous
decision involved a clearly erroneous interpretation of material fact or
law; or (2). the decision will have a substantial impact on the policies,
practices, or operation of the agency. 64 Fed.Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �1614.405(b)).<2>
For the reasons set forth herein, complainant's requests are denied.
EEOC Request No. 05980879
The record in this case reveals that complainant, an Instructor with
the agency's Defense Language Institute, contacted an EEO Counselor and
subsequently filed a formal complaint in July 1997, alleging that she was
discriminated against in reprisal for prior EEO activity when management
encouraged a former student to write a memorandum in March 1996 stating
that complainant had been under the influence of drugs during class,
and submitted the memorandum to the Security Office while withholding
it from complainant.
In its final decision dated August 7, 1997, the agency dismissed
complainant's complaint on the grounds that it stated the same claim
as that raised in a prior complaint. Specifically, the agency stated
that complainant filed a complaint in May 1997 (agency case number
BSEYF09706H0070; Complaint 11) regarding the memorandum in question and
the submission of the memorandum to the Security Office. The agency
indicated that Complaint 11 was pending. The decision in EEOC Appeal
No. 01976148 affirmed the agency's dismissal of the complaint at issue.
In her request for reconsideration, complainant asserted that the agency
misrepresented the facts in her prior complaint. Complainant indicated
that while Complaint 11 was pending an administrative hearing, the agency
had filed a motion requesting that the Administrative Judge issue findings
and conclusions without a hearing. Complainant submitted portions of
the December 1997 testimony of her former Supervisor concerning the
memorandum, as well as a copy of her response to the agency's motion
in Complaint 11. Complainant also included a statement from another
prior student.
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument which tends to establish that the criteria of 29
C.F.R. �1614.405(b) 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).
After a careful review of the previous decision, complainant's
request for reconsideration, and the entire record, the Commission
finds that complainant's request fails to meet the criteria in 29
C.F.R. �1614.405(b). Specifically, complainant has presented no
evidence to show that the agency's dismissal of the July 1997 complaint
was improper. In 64 Fed.Reg. 37,644, 37,656 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. �1614.107(a)), the regulations
provide that the agency shall dismiss a complaint or portion thereof
which states the same claim that is pending before, or has previously
been decided by the agency or the Commission. In the case at hand, the
record reveals that complainant raised the issue concerning the March 1996
memorandum in her May 1997 complaint, and complainant admitted as much on
appeal.<3> While complainant asserted that the agency is attempting to
misrepresent the facts in her prior complaint, complainant acknowledged
having filed a response to the agency's above-referenced motion with the
Administrative Judge. Consequently, based on our review of the record,
we find that complainant has failed to provide evidence which would
warrant a reconsideration of the decision in EEOC Appeal No. 01976148.
EEOC Request No. 05981001
Complainant contacted an EEO Counselor on December 17, 1996, alleging
sex (female) and reprisal discrimination with regard to a memorandum
signed by her co-workers following a May 1994 staff meeting. Complainant
subsequently filed a formal EEO complaint with regard to the matter on
January 23, 1997, stating that her former supervisor either wrote the
memorandum or directed her co-workers to write it, and that the Dean
failed to take any action. Complainant indicated to the EEO Counselor
that one of her co-workers told her about the memorandum several days
after the meeting, and noted that it contained negative information
regarding complainant. Complainant stated, however, that she was unable
to obtain a copy of the memorandum until December 1996, after she filed
a request under the Freedom of Information Act (FOIA).
In its final decision dated March 13, 1997, the agency dismissed
complainant's complaint on the grounds that she failed to timely contact
an EEO Counselor. The agency stated that complainant had constructive
knowledge of the memorandum shortly after the May 1994 staff meeting.
The decision in EEOC Appeal No. 01973669 affirmed the agency's dismissal
of complainant's complaint.
In her request for reconsideration, complainant reiterated that she
was unable to obtain a copy of the memorandum until 1996, stating
that she could not file a complaint based on unconfirmed information.
Complainant acknowledged that a co-worker told her that a memorandum
had been written; however, she stated that she was either told that
management was unable to locate the document or that it did not exist.
Complainant further stated that she concluded the document did not
exist in 1996, because it was not contained in her personnel files.
Complainant submitted various documents which were already contained in
the record. In response to complainant's request, the agency asserted
that complainant did not satisfy the criteria for reconsideration.
Based upon a review of the record, the Commission finds that complainant's
request for reconsideration fails to meet the criteria set forth in
29 C.F.R. �1614.405(b). EEOC Regulation 29 C.F.R. �1614.105(a)(1)
requires that complaints of discrimination be brought to the attention
of the EEO Counselor within 45 days of the alleged discriminatory event,
or the effective date of an alleged discriminatory personnel action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the limitation period
is triggered under the EEOC Regulations. See, 29 C.F.R. �1614.105(a)(2);
Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988). Thus, the
limitation period is not triggered until a complainant should reasonably
suspect discrimination, but before all the facts that would support a
charge of discrimination have become apparent.
Complainant essentially reiterates her assertion that she was unable to
obtain a copy of the memorandum until 1996. Nevertheless, complainant
acknowledged having been told by a co-worker in May 1994 that a memorandum
had been written which contained negative statements about her. None of
the documents submitted by complainant with her request support her
contention that she was told the memorandum did not exist. Further,
complainant's actions in continuing to request a copy of the document
contradict her assertions that she believed the document did not exist.
The Commission has found that, since the limitation period for contacting
an EEO Counselor is triggered by the reasonable suspicion standard,
waiting until one has "supporting facts" or "proof" of discrimination
before initiating a complaint can result in untimely Counselor contact.
See Bracken v. USPS, EEOC Request No. 05900065 (March 29, 1990).
Accordingly, the Commission finds that the decision in EEOC Appeal
No. 01973669 properly affirmed the dismissal of complainant's complaint.
EEOC Request No. 05981079
Complainant contacted an EEO Counselor in April 1997, and subsequently
filed a formal complaint alleging that she was discriminated against
in reprisal for prior EEO activity when the EEO Manager mishandled and
improperly dismissed a prior complaint (the complaint at issue in EEOC
Request No. 05981001; Complaint 9). Complainant asserted that the
EEO Manager withheld testimony, modified the EEO Counselor's report,
and attempted to prevent her from filing the complaint once she raised
the matter.
Thereafter, the agency dismissed the complaint for failure to state a
claim, indicating that the issue concerning the dismissal of Complaint 9
was pending on appeal before the Commission. The decision in EEOC Appeal
No. 01975283 affirmed the final agency decision. That decision noted
that complainant was attempting to challenge the agency's processing of
Complaint 9, and stated that complainant did not identify any policy or
practice having a discriminatory effect thereon.
In her request for reconsideration, complainant made various allegations
of agency misconduct which she asserted were confusing to the Commission.
Further, complainant stated that the EEO Counselor incorrectly represented
the facts in Complaint 9. Complainant included a copy of the EEO
Counselor's statement completed in January 1997, which complainant signed,
as well as a March 1997 letter from the EEO Manager and a March 1997
memorandum from a co-worker. The agency countered that complainant's
request did not meet the criteria for reconsideration.
After a careful review of the previous decision, complainant's request for
reconsideration, the agency's response thereto, and the entire record, the
Commission finds that complainant's request fails to meet the criteria in
29 C.F.R. �1614.405(b). As stated, complainant's complaint concerns the
processing and dismissal of Complaint 9 addressed above. The Commission
finds no evidence to support complainant's assertions concerning the
suppression of evidence or intentional misrepresentation of facts.
Complainant has also not identified any procedural irregularity warranting
the Commission's intercession in the processing of her complaints.
Accordingly, the Commission finds that complainant has failed to provide
evidence which would warrant a reconsideration of the decision in EEOC
Appeal No. 01975283.
CONCLUSION
After a review of complainant's requests for reconsideration, the previous
decisions, and the entire record, the Commission finds that complainant's
requests fail to meet the criteria of 29 C.F.R. �1614.405(b), and it is
therefore the decision of the Commission to DENY complainant's requests.
The decisions in EEOC Appeal Nos. 01976148 (May 27, 1998), 01973669
(July 8, 1998), and 01975283 (July 30, 1998) remain the Commission's
final decisions. There is no further right of administrative appeal on
a decision of the Commission on this Request for Reconsideration.
STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)
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 (Z1199)
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:
March 29, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
1Complainant filed her requests with regard to EEOC Appeal Nos.
01976148, 01975283, and 01973669 on June 19, 1998, July 24, 1998, and
August 24, 1998, respectively.
2On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
3We note that the complainant has failed to show that the testimony of
her former supervisor and the prior student's statement are relevant to
the matter at issue.