05A00535_r
04-18-2002
Lynn Abernethy, Jr., Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Lynn Abernethy, Jr. v. Department of the Treasury
05A00535
April 18, 2002
.
Lynn Abernethy, Jr.,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Request No. 05A00535
Appeal No. 01985795
Agency No. 98-1096
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Lynn
Abernethy, Jr. v. Department of the Treasury, EEOC Appeal No. 01985795
(March 7, 2000). EEOC Regulations provide 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. See 29 C.F.R. � 1614.405(b).
Complainant initially filed a timely appeal with this Commission from
an agency decision, dated June 19, 1998, pertaining to his complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
In his formal complaint, complainant alleged that he was subjected to
discrimination on the bases of race, color, sex, and in retaliation for
prior protected activity, when:
On October 3, 1997, the ratings complainant received on his mid-year
progress review were less than complainant deserved;
On or about July 8, 1997, upper management canceled the Quality
Improvement Project (QIP) after complainant was initially assigned by
his supervisor;
On June 7, 1993, complainant was forced to work under a false position
description for which there were no attorney (GS-905-14) duties;
A June 4, 1993 settlement agreement has continued to violate
complainant's rights;
On August 19, 1997, the EEO element and standard of the
Executive/Managerial Performance Plan was implemented to deny equal
protection to Caucasian males in the workforce; and
On December 24, 1997, Vacancy Announcement No. MEL-98TG6379 was announced
nationwide and complainant was not laterally reassigned to the position
of Supervisory Attorney.
The agency issued a decision dismissing complainant's complaint on various
grounds. Specifically, the agency dismissed issue (1) for alleging a
proposal to take an action. Also, the agency noted that complainant
filed a subsequent complaint concerning his Annual Job Element Appraisal
(Agency No. 98-1189). The agency dismissed issue (2) on the grounds
that it failed to state a claim and alternatively for untimely EEO
Counselor contact. The agency dismissed issue (3) on the grounds of
untimely EEO Counselor contact and on the grounds that it stated the
same claim that is pending before or has been decided by the agency or
the Commission. The agency dismissed issue (4) on the grounds that it
involved the same issue previously decided by the agency or Commission.
The agency dismissed issue (5) on the grounds that it failed to state a
claim and alternatively for untimely EEO Counselor contact. The agency
dismissed issue (6) for failure to state a claim.
The Commission's previous decision affirmed the agency's dismissal of
issues (3) and (4) on the grounds that they involved the same issues
previously decided by the agency or Commission. The Commission reversed
the dismissal of issue (1), finding that since complainant alleged that
the mid-year progress review was taken for the purpose of harassment, it
affected complainant and cannot be dismissed as a preliminary step to take
a personnel action. Our decision also noted that the mid-year progress
review was relied on by management to revoke complainant's flexiplace
eligibility and thus rendered complainant aggrieved. The Commission
reversed the agency's dismissal of the issues (2), (5), and (6), finding
that these issues stated an overall claim of harassment. Additionally,
the Commission noted that with regard to issue (5), complainant stated a
continuing violation of harassment and thus, found that this issue was
improperly dismissed on the grounds of untimely EEO Counselor contact.
The Commission's decision did not expressly address the agency's dismissal
of issue (2) for untimely EEO Counselor contact.
In its request for reconsideration, the agency argues that the Commission
incorrectly reversed the dismissal of issues (1), (2), (5), and (6).
With regard to issue (1), the agency notes that subsequent to the issuance
of the agency decision, complainant retired from the agency and is no
longer aggrieved by the ratings on a three-year old progress review.
Also, the agency notes that complainant filed a subsequent complaint
(Agency Case No. 98-1189), which challenged his Annual Job Appraisal
and the denial of flexiplace, which is inextricably intertwined with the
issue of complainant's mid-year progress review. The agency argues that
since Agency Case No. 98-1189 was dismissed by an EEOC Administrative
Judge (AJ) based on the fact it was the subject of a civil action,
processing the present issue of the mid-year progress review would
result in the �unnecessary expenditure of Government resources.� With
regard to issue (2), the agency states that the Commission's previous
decision failed to address the timeliness issue and argues that issue
(2) was correctly dismissed as untimely. With regard to issue (5), the
agency reiterates its arguments that this issue fails to state a claim.
Finally, with regard to issue (6), the agency argues that this issue was
the subject of a subsequent complaint (Agency Case No. 99-1058) filed
by complainant which was dismissed by an EEOC AJ for being the subject
of a civil action. The agency argues that res judicata precludes issue
(6) from being addressed by the Commission again.
As an initial matter we note that the agency has failed to supply a
copy of any civil action filed by complainant. Therefore, we can not
find that any of the claims at issue in the instant complaint were the
subject of a civil action.
The Commission finds that its reversal of issue (1) was proper. Although
the agency argues in its request for reconsideration, that complainant
filed a subsequent complaint of discrimination (concerning the annual
performance review and the flexiplace issue) which is interrelated
to the mid-year progress review, we note that the agency presented no
evidence during complainant's original appeal that these issues were
improperly before the Commission. Furthermore, the agency failed to
present any evidence showing that issue (1), when considered as part of
the harassment claim, is moot.
With regard to issue (2), we note that although the Commission's
previous decision did not explicitly address the timeliness of
this issue in the prior decision, the Commission effectively found,
when reversing the agency's dismissal of this issue, that the agency
improperly dismissed this issue for untimely EEO Counselor contact.
Our decision established that in considering issue (2) with the other
issues identified, complainant stated a cognizable claim of harassment.
The decision also found that complainant stated a continuing violation.
Under the continuing violation theory, issue (2) was considered timely
and we reversed the agency's dismissal of this issue. The Commission
finds no reason to alter that decision now.
With regard to issues (5) and (6), we find that our previous decision
correctly found that complainant stated a claim of harassment.
As previously stated, we find that issue (5) is timely under the
continuing violation theory. Additionally, although the agency notes
in its request for reconsideration that complainant filed a subsequent
complaint (Agency Case No. 99-1058) which it claims is inextricably
intertwined with issue (6), we find that the agency did not present
any evidence during complainant's original appeal which would warrant
a change in our previous decision.
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. 01985795 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 claims 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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. �� 1614.407, 1614.408, and 29 C.F.R. � 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). 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. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing 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 (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
April 18, 2002
__________________
Date