05971073
06-24-1999
Michael J. Bregman, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Michael J. Bregman v. Department of the Treasury
05971073
June 24, 1999
Michael J. Bregman, )
Appellant, )
) Request No. 05971073
v. ) Appeal No. 01970519
) Agency No. 96-1088
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
__________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
On September 11, 1997, Michael J. Bregman (hereinafter referred to
as the appellant) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision
in Michael J. Bregman v. Robert E. Rubin, Secretary, Department of
the Treasury, EEOC Appeal No. 01970519 (August 19, 1997), received
on August 20, 1997. EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). 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, 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 that follow, appellant's
request is denied; however, the Commission has decided to reconsider
the previous decision on its own motion.
The issues presented are whether appellant's request for reconsideration
satisfies the requirements of 29 C.F.R. �1614.407(c); and whether the
previous decision erred when it affirmed the dismissal of allegations (1),
(2), (3), (4) and (5) of appellant's complaint.
Appellant sought EEO counseling on October 23, 1995. He subsequently
filed a complaint that contained nine (9) allegations. He alleged that
he was subjected to discrimination based on race (Caucasian), religion
(Jewish), sex (male), and age (DOB: 6/28/44)) when:
1) an anti-Semitic remark was made to him in 1979;
2) in 1989, he was transferred from a position that was to be upgraded;
3) in October/November 1993, the Director was brought in to prompt the
retirements of several senior staff personnel;
4) his applications for SES training were denied in March 1994 and spring
1995;
5) on October 27, 1995, a Senior Manager told him that another Senior
Manager had referred to him as the "Jew boy";
6) in October 1995, he was detailed to Interpol as a representative and
not as the Chief of the office;
7) in October 1995, he was reassigned from the position of Executive
Assistant to the Special Operations Division as an Acting Chief;
8) in October 1995, he was denied the opportunity to attend a meeting
held outside the Washington, D.C. area; and
9) in September 1995, his office space was subdivided, and another person
was then assigned to the space.
The agency dismissed allegations (1), (2), (3) and (4) on the grounds of
untimely counselor contact. Allegations (1), (2), (3), and (5) through
(9) were also dismissed on the grounds that they did not state a claim.
On appeal, appellant argued that he was not aware of the discriminatory
animus behind the agency's actions until he was told by a high ranking
official in October 1995, that he had been called a "Jew boy" by another
high-ranking official. That incident, according to appellant, was a
"defining moment," and caused him to promptly initiate the EEO process.
The previous decision affirmed the dismissal of allegation (1) because
appellant's attorney indicated that they were not disputing its dismissal.
After rejecting appellant's contention that his allegations should have
been deemed timely under the continuing violation theory, the previous
decision affirmed the dismissals of allegations (2), (3) and (4).
According to the previous decision, appellant, who maintained that he had
been subjected to continuous discrimination as far back as late 1969/early
1970, had a reasonable suspicion of discrimination and was obligated to
contact an EEO counselor in a timely manner. With regard to allegation
(5), the previous decision, after concluding that appellant had not been
subjected to an adverse action as a result of the remark in question,
affirmed the agency's dismissal.<1>
In his request to reconsider (RTR), appellant, although largely arguing
the merits of his complaint, maintained the previous decision erred
in affirming the dismissal of allegations (1)-(5). With regard to
allegations (2), (3) and (4), appellant, in pertinent part, reiterated
his contention that these allegations were timely pursuant to the
continuing violation theory. Although he made no specific arguments
regarding allegations (1) and (5), appellant did maintain that the
previous decision erred by affirming their dismissals.
In order to merit the reconsideration of a prior Commission decision,
the requesting party must submit written argument or evidence which tends
to establish that at least one of the criteria of 29 C.F.R. �1614.407(c)
is met. The Commission's scope of review on a request for reconsideration
is narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989). A RTR is not merely a form of a second appeal.
Regensberg v. USPS, EEOC Request No. 05900850 (September 7, 1990).
Instead, it is an opportunity to submit newly discovered evidence,
not previously available; to establish substantive error in a previous
decision; or to explain why the previous decision will have effects
beyond the case at hand. Lyke v. USPS, EEOC Request No. 05900769
(September 27, 1990).
After a careful review of the record, the Commission finds
that appellant's RTR does not meet the regulatory criteria of 29
C.F.R. �1614.407(c). That is, he has presented no new and material
evidence, nor has he established that any substantive legal or
factual error exists in the previous decision that would warrant
reconsideration.<2> In addition, there has not been a showing that
the previous decision was of such an exceptional nature as to have
substantial precedential implications. As previously noted, a request
for reconsideration is not a second appeal. Accordingly, it is the
decision of the Commission to deny the RTR.
Notwithstanding the above, the Commission has decided to reconsider one
aspect of the previous decision on its own motion. The previous decision
found that appellant was not aggrieved with respect to allegation (5)
because the comment of the Senior Manager, which allegedly occurred
on October 27, 1995, constituted a remark that was unaccompanied by a
concrete action. Contrary to this determination, however, we note that
allegations (6), (7), (8), and (9) all took place shortly before or soon
after the alleged comment; therefore, we find that these acts, combined
with the alleged comment, were sufficient to render appellant aggrieved.
Consequently, we will remand allegation (5) for processing along with
allegations (6), (7), (8) and (9).
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request fails to satisfy the criteria of 29 C.F.R. �1614.407(c),
and it is the decision of the Commission to deny the request.
The Commission, however, has decided to reconsider the decision in EEOC
Appeal No. 01970519 (August 19, 1997) on its own motion. We REVERSE the
portion of the previous decision that affirmed the agency's dismissal of
allegation (5). This allegation will be REMANDED for further processing
in accordance with this decision and the Order below. There is no further
right of administrative appeal from a decision of the Commission on a
request for reconsideration.
ORDER (E1092)
The agency is ORDERED to process allegations (5), (6), (7), (8) and
(9) in accordance with 29 C.F.R. �1614.108. The agency shall also
investigate allegations (1), (2), (3) and (4) as background evidence,
to the extent that such evidence is relevant to the issues which will
be processed. The agency shall acknowledge to the appellant that it has
received the remanded allegations 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 the 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
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. 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 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:
June 24, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Allegations (6)-(9), however, were remanded for processing and are not
a part of appellant's reconsideration request.
2With regard to allegations (1), (2), (3) and (4), we note our recent
determination in Ferguson v. Department of Justice, EEOC Request
No. 05970792 (March 30, 1999) that a continuing violation will not
be found where the acts complained of are by themselves capable of
triggering a reasonable suspicion of discrimination. Therefore, the
dismissal of these allegations was properly affirmed. This finding,
however, does not relieve the agency of its responsibility to thoroughly
investigate all of the circumstances that may be relevant to appellant's
claim of discrimination. See EEOC Management Directive (MD)-110 at 5-4
(October 22, 1992). These untimely allegations may still be investigated
as background evidence to the extent that they are probative of the issues
which will be processed. See Silva v. USPS, EEOC Request No. 05960115
(June 20, 1996).