Morris D. Scott, Appellant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionApr 14, 1999
05970038 (E.E.O.C. Apr. 14, 1999)

05970038

04-14-1999

Morris D. Scott, Appellant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Morris D. Scott v. Department of the Interior

05970038

April 14, 1999

Morris D. Scott, )

Appellant, )

)

v. ) Request No. 05970038

) Appeal No. 01956039

Bruce Babbitt, ) Agency No. FNP-94-126

Secretary, )

Department of the Interior, )

Agency. )

___________________________________)

GRANTING OF REQUEST FOR RECONSIDERATION

INTRODUCTION

On October 9, 1996, Morris D. Scott (hereinafter referred to as

appellant) timely initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Morris

D. Scott v. Bruce Babbitt, Secretary, Department of the Interior,

EEOC Appeal No. 01956039 (September 5, 1996), received by appellant on

September 10, 1996. 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 set forth herein, appellant's

request is GRANTED.

ISSUE PRESENTED

The issue presented herein is whether the previous decision was correct

when it affirmed the agency's dismissal of allegations (2) and (3)

of appellant's July 1994 complaint.

BACKGROUND

Appellant filed an EEO complaint dated July 25, 1994, alleging that he

was discriminated against on the bases of age, sex, and retaliation.

The complaint containing the following allegations:

1) on June 16, 1994, appellant received a notice of termination concerning

his position as Wildlife Biologist, GS-0486-07, the reason for termination

was "lack of work;"

2) in May 1994, appellant's application for a collecting permit, which

was required for appellant's volunteer project on antelopes, was denied

by a park management official;

3) on March 24, 1994, appellant was informed that if he withdrew his

prior complaint, he would not be terminated for cause, which would have

allowed for the continuation of appellant's unemployment benefits; and

4) from April through June 1994, a park management official allowed

degradation of males to continue within the work place, and a female

employee displayed a poster of sparsely clothed men.

The agency accepted allegations (1) and (4) for investigation.

Allegation (2) was dismissed on the grounds that appellant had not

brought the matter to the attention of an EEO counselor. Allegation (3)

was dismissed on the grounds that it stated a claim that had previously

been raised by appellant.

The previous decision, finding that allegation (2) was not like or

related to the other allegations contained in appellant's complaint,

affirmed the agency's decision to dismiss. With regard to allegation

(3), the previous decision, without addressing the agency's grounds for

dismissal, determined that the allegation failed to state a claim.

In appellant's request for reconsideration (RTR), he maintained that

the previous decision erred in affirming the dismissals of allegations

(2) and (3). Specifically, he said that allegation (2) was related to

allegation (1) because his position as a Research Biologist in Yellowstone

National Park required that he capture and study antelope. In order to

perform this duty, appellant had to have a Scientific Collecting Permit

(permit). Appellant said that although his permit renewal requests had

been approved all seven years that he worked for the agency, his May 1994

request was denied. According to appellant, the agency was able to insure

that he would not have work to perform by denying his renewal request.

Furthermore, appellant insisted that he discussed allegation (3) with

his EEO counselor. With regard to allegation (3), appellant questioned

the previous decision's determination that he failed to state a claim.

He also said that the agency erred when it dismissed allegation (3)

on the grounds that it stated a claim that had previously been raised

by him.

The agency did not respond to appellant's RTR.

ANALYSIS AND FINDINGS

For the foregoing reasons, the Commission finds that appellant's request

for reconsideration meets the criterion of 29 C.F.R. �1614.407(c)(2).

It is therefore the decision of the Commission to grant the request.

Allegation (2)

EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall

dismiss a portion of a complaint that raises a matter that has not been

brought to the attention of an EEO counselor and is not like or related

to a matter that has been brought to the attention of an EEO counselor.

After a careful review of the record, we find that allegation (2) is

related to allegation (1), a matter that was brought to the attention of

an EEO counselor. According to appellant, in June 1994, he was terminated

because of a lack of work. Since the denial of appellant's permit would,

no doubt, have had an effect on his ability to work, we find that there

is a nexus between these two allegations. Consequently, we find that

the previous decision erred.

Allegation (3)

The previous decision erred in finding that allegation (3) failed to

state a claim. According to appellant, in March 1994, he was told by

the Assistant Superintendent and the former Chief of Research that he

would be terminated "for cause" unless he withdrew a prior November

1993 formal complaint, that is, Complaint No. FNP-94-021 (hereinafter

Complaint-1).<1> Appellant was told that a termination "for cause"

would adversely affect his ability to receive unemployment benefits.

We find, contrary to the previous decision, that appellant was aggrieved

because the alleged comments might constitute a per se violation of both

the letter and spirit of our EEO Regulations.<2>

EEOC Regulation 29 C.F.R. �1614.101(b) provides that:

No person shall be subject to retaliation for opposing any practice made

unlawful by Title VII of the Civil Rights Act . . . the Age Discrimination

in Employment Act . . . the Equal Pay Act . . . or the Rehabilitation

Act or for participating in any stage of administrative or judicial

proceedings under those statutes.

With regard to the agency's grounds for dismissing allegation (3), we

note that in April 1994, appellant withdrew Complaint-1. In a letter

dated June 20, 1994, however, he contacted the agency and requested that

Complaint-1 be reinstated. Appellant said "[I] had no desire to drop

this complaint - but I was forced to sign the withdrawal statement by

Yellowstone administrators." A review of the agency's final decision

reveals that it based its decision to dismiss allegation (3) on the fact

that appellant "[r]aised the same issue of withdrawing [his] complaint

that [he] presented in paragraph three of [his] request to reopen

[Complaint-1]."

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in pertinent part,

that the agency shall dismiss a complaint or a portion of a complaint

that states the same claim that is pending before or has been decided

by the agency or Commission. The Commission has held that a complaint

must set forth the identical matters as contained in a previous complaint

filed by the same complainant, in order for the complaint to be dismissed.

See Russell v. Department of the Army, EEOC Request No. 05910613 (August

1, 1991) (interpreting 29 C.F.R. �1613.215(a)(1) - the predecessor of

29 C.F.R. �1614.107(a)).

After a careful review of the record, we find that the agency erred in

its application of EEOC Regulation 29 C.F.R. �1614.107(a). Appellant

never filed a formal complaint containing allegation (3) prior to filing

his present complaint. The fact that this issue was raised in a June

1994 letter does not mean that it was raised in a manner contemplated

by our regulations.

CONCLUSION

After a review of appellant's request to reconsider, the previous

decision, and the entire record, the Commission finds that appellant's

request meets the criterion of 29 C.F.R. �1614.407(c)(2). It is

therefore the decision of the Commission to GRANT appellant's request.

The decision in EEOC Appeal No. 01956039 (September 5, 1996) is REVERSED.

There is no further right of administrative appeal on a decision of the

Commission on a Request to Reconsider.

ORDER (E1092)

The agency is ORDERED to process allegations (2) and (3) in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received allegations (2) and (3) 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:

April 14, 1999

_______________ ______________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

1We find it important to note that there is no evidence that these

comments were made pursuant to on-going settlement negations between

appellant and the agency.

2See Jasper v. USPS, EEOC Request No. 05920370 (August 7, 1992).