05A01281
11-28-2000
Joann Cannizzaro, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Joann Cannizzaro v. U.S. Department of Veterans Affairs
05A01281
November 28, 2000
.
Joann Cannizzaro,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A01281
Appeal No. 01A03656
Agency No. 200H-1484
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in
Joann Cannizzaro v. U.S. Department of Veterans Affairs, EEOC Appeal
No. 01A03656 (July 27, 2000).<1> EEOC Regulation 29 C.F.R. � 1614.405(b)
provides that the Commission may, in its discretion, 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.
In her formal complaint, complainant stated that she was being
subjected to retaliatory harassment when pressured and threatened
with discipline should she refuse to accept an unsuitable position in
another department of the medical center. The agency dismissed this
complaint on the grounds of failure to state a claim, also finding that
this single incident did not state an actionable claim of harassment.
See 29 C.F.R. � 1614.107(a)(1). On appeal, complainant argued that
the incident mentioned in the formal complaint was merely one example
of the on-going harassment to which she had been subjected since filing
an EEO complaint against a certain agency official. In response, the
agency argued that it was only bound to act on what was raised in the
formal complaint, so that its dismissal was proper.
The previous decision reversed the agency's dismissal, finding
that complainant clearly set forth a harassment claim in her formal
complaint, and that the agency improperly failed to consider all of the
circumstances supporting this claim. In its request for reconsideration,
the agency again argues that it is not bound to look beyond the formal
complaint when deciding to accept or reject a claim for investigation.
We advise the agency that when a claim of harassment is set forth in a
formal complaint, in order to guard against fragmentation, the agency
should seek clarification from its own records or from the complainant
concerning the relevant background circumstances and evidence which
support this claim. See EEO Management Directive 110 at 5-5 (November
9, 1999). Here, the EEO counselor's report contained much of the
pertinent information regarding the instant harassment claim, yet the
agency improperly refused to consider it because only the claim, but
not all of the evidence, was set forth in the formal complaint.
After a review of the agency's request for reconsideration, 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. 01A03656 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
ORDER (E0900)
The agency is ordered to process the remanded harassment claim in
accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. 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 acknowledgment 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 28, 2000
__________________
Date
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.