05980121
11-08-1999
Grover C. Duke, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Grover C. Duke v. Department of the Navy
05980121
November 8, 1999
Grover C. Duke, )
Complainant, )
) Request No. 05980121
v. ) Appeal No. 01965346
) Agency No. 96-60258-010
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On November 10, 1997, Grover C. Duke (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Grover C. Duke v. Richard J. Danzig,
Secretary, Department of the Navy, EEOC Appeal No. 01965346 (October 10,
1997). EEOC regulations provide that the Commissioners may, in their
discretion, reconsider any previous decision. 29 C.F.R. �1614.407(a).
A party requesting reconsideration must submit written argument or
evidence which tends to establish one or more of the following 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); 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 below, the complainant's request is denied.
On the Commission's own motion, we reconsider the previous decision.
The issue presented is whether the previous decision properly affirmed
the agency's dismissal of seven allegations, reversed the dismissal of
two allegations, and remanded one allegation for clarification.
Complainant contacted an EEO counselor on September 17, 1992, by
telephone, and filed his formal complaint on March 10, 1993. At the time
of his original complaint, complainant was a WG-10 Ordinance Equipment
Mechanic at the Long Beach Naval Shipyard (California) (LBNS). He was
subsequently dismissed in March 1993, having lost his security clearance
due to excessive personal debt incurred on a government credit card.
At the direction of the Commission in EEOC Appeal No. 01944653 (June 1,
1995), the agency supplemented the record and issued a new final agency
decision (FAD) on June 10, 1996. The agency identified the six issues
accepted for investigation, as follows.
Based on race (black), disability (leg, elbow and shoulder injuries), and
reprisal for prior EEO contact in March 1992, complainant alleged that:
2(a) from June 1990 to March 1993, complainant was denied "C" school
training;
2(b) from November 1991 through May 1993, complainant was treated
differently by the LBNS compensation office with regard to communications,
lost case files, lack of retraining, and denied physical accommodation;
2(c) between July 1991 and November 1992, the agency improperly processed
complainant's compensation claims;
2(d) the agency released complainant's credit card information without
his authorization;
2(e) on March 28, 1993, complainant was terminated while a similarly
situated employee was allowed to resign; and
2(f) from June 1991, he was never given a permanent job assignment.
The FAD also dismissed the following allegations of discrimination:
7(a) complainant's on the job injury of February 21, 1992, causing
complainant's June 18, 1992, surgery was not compensated;
7(b) subsequent to complainant's injury, LBNS received six letters and
memoranda from complainant's treating physician requesting vocational
rehabilitation, all requests were denied;
7(c) several management officials communicated both telephonically and
in writing to the Merit Systems Protection Board, unemployment office,
EEOC Washington, and the district court, that complainant was terminated
because of misconduct, theft, fraud, and dishonesty;
7(d) complainant's SF-50 stated that complainant "Failed to Meet
Requirement of Employment." There was no mention of misconduct;
7(e) complainant was terminated while under a doctor's care;
7(f) complainant's EEO Counselor wrote false statements concerning
complainant's case;
7(g) between June 26, 1991 and May 17, 1993, complainant was primarily
employed on temporary duty assignments;
7(h) complainant's EEO complaint of March 10, 1993 was not processed in
a timely manner;
7(i) between July of 1991 and May of 1993, specifically through August
1991, complainant was denied advancement and training opportunities; and
7(j) three of the four compensation claims were objected to by the agency,
however they were accepted by the Office of Workers' Compensation (OWCP).
The previous decision affirmed the agency's action dismissing #7(a),
#7(c), #7(d), #7(f), #7(h) and #7(j), finding that they were properly
dismissed for failure to state a claim; also, the decision found that the
agency properly dismissed #7(i) for untimely EEO contact. The decision
determined that #7(b) required clarification of whether complainant was
alleging that the agency failed to reasonably accommodate him.
With regard to #7(e) and #7(g), the decision reversed the agency's
dismissal and ordered continued processing on these claims. The decision
stated that #7(e), although possibly dismissable on other grounds, may not
be dismissed, since complainant's allegation regarding his termination
was accepted by the agency. Also, in reversing the dismissal of #7(g),
the decision found that the issue was not moot.
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 his RTR, complainant argues the merits of his complaint, inappropriate
to a consideration of the terms of a complaint. Also, complainant
misstates some of the issues dismissed by the agency, leading to confusion
in the matters he addresses. We note, in addition, that complainant
has already been afforded ample opportunity to amplify the substance
of his claims and that he may further do so during the investigation.
Of relevance to the Commission's consideration herein, however, is that
complainant's RTR has not demonstrated that the claims found properly
dismissed by the previous decision for failure to state a claim, in fact,
state a claim under our regulations or that #7(i) was timely.
Nevertheless, on our own motion, the Commission reconsiders the previous
decision. The Commission is concerned that the issues accepted by the
agency and those remanded to the agency by the previous decision, i.e.,
#7(e), #7(g), and #7(b), will result in a fragmentation of complainant's
complaint. Upon review of the issues remanded by the previous decision
as compared to the issues accepted by the agency, we find that they are
repetitive of the pending claims. For that reason, we will direct that
the agency subsume the remanded allegations into the issues already
accepted by the agency, that is, #7(b) should be part of the agency's
investigation of #2(b); #7(e) should be contained in #2(e); and #7(g)
should be included with #2(f). Similarly, to the extent that any issues
dismissed by the agency provide relevant background to any pending issue
accepted for investigation, the agency should include that information
in its investigation.
CONCLUSION
After a review of the complainant's request for reconsideration,
the previous decision, and the entire record, the Commission finds
that the complainant's request fails to meet any of the criteria of 29
C.F.R. �1614.407(c), and it is the decision of the Commission to deny the
complainant's request. Upon our own motion, the Commission reconsiders
the previous decision. The decision in EEOC Appeal No. 01965346 (October
10, 1997) is MODIFIED, and the agency is directed to comply with the
Order, below. There is no further right of administrative appeal on a
decision of the Commission on a Request for Reconsideration.
ORDER
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108 and the Commission's decision herein by
incorporating the remanded allegations into the pending issues accepted
for investigation, that is, #7(b) should become part of the agency's
investigation of #2(b); #7(e) should become part of #2(e); and #7(g)
should become part of #2(f). The agency shall acknowledge to the
complainant that it has received the remanded allegations within
thirty (30) calendar days of the date this decision becomes final.
If the agency has already conducted its investigation of the issues
accepted, it shall conduct a supplemental investigation incorporating
these remanded allegations. At a minimum, the agency should provide
complainant an opportunity to present testimony and evidence in support
of his claims. Thereafter, the agency shall issue to complainant a
copy of the investigative file and also shall notify complainant 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 complainant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of complainant's request.
A copy of the agency's letter of acknowledgement to complainant 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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. �1614.503 (a). The complainant 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 complainant 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
complainant 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 COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
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. 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 (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:
Nov. 8, 1999
Date Carlton Hadden, Acting Director
Office of Federal Operations