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).