05990816
10-14-1999
Ora L. Batiste, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Domestic Dependent Elementary and Secondary Schools), Agency.
Ora L. Batiste v. Department of Defense
05990816
October 14, 1999
Ora L. Batiste, )
Appellant, )
) Request No. 05990816
v. ) Appeal No. 01980895
) Agency No. 97-EKYKX005
William S. Cohen, )
Secretary, )
Department of Defense, )
(Domestic Dependent Elementary )
and Secondary Schools), )
Agency. )
__________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On June 29, 1999, the Department of Defense (the agency) timely initiated
a request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Ora L. Batiste v. William S. Cohen,
Secretary, Department of Defense, Domestic Dependent Elementary and
Secondary Schools, EEOC Appeal No. 01980895 (October 8, 1998).<1> 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 stated below, the agency's
request is denied.
ISSUE
The issue presented is whether the agency's request for reconsideration
satisfied the requirements of 29 C.F.R. �1614.407(c).
BACKGROUND
On April 24, 1997, appellant initiated contact with an EEO counselor.
Informal efforts to resolve her concerns were unsuccessful. On August
25, 1997, she received a Notice of Final Interview, informing her that
she had fifteen days from the date of its receipt to file a timely
complaint. On September 11, 1997, appellant filed a formal complaint,
alleging that she was the victim of unlawful employment discrimination
on the bases of sex and disability. On September 29, 1997, the agency
issued a final decision, dismissing appellant's complaint on the grounds
that it was untimely filed.
In her appeal statement, appellant argued that on August 28, 1997,
she informed her EEO counselor that there was no formal complaint form
in the documents she received on August 25, 1997; and that her husband
had unsuccessfully attempted to obtain a copy of the complaint form for
her. According to the appellant, the EEO counselor mailed the complaint
form to her, and that she received it on August 29, 1997. Appellant
argued that the EEO counselor "assured [her] that the delay of the form
would not be counted against the 15 days because she forgot to attach
the form to the report." The previous decision, in light of appellant's
contention that she was told that the 15-day time limitation period
would be tolled pending her receipt of the complaint form, vacated
the agency's final decision and remanded appellant's complaint for a
supplemental investigation.
In its request to reconsider (RTR), the agency argued that it was
not accorded fair treatment or due process because neither appellant
nor the Commission provided it with a copy of appellant's appeal
statement. Consequently, the agency requested that the Commission provide
it with a complete copy of appellant's appeal statement, and issue a
new decision providing it with sixty (60) days, from its receipt of
appellant's appeal statement, to supplement the record with evidence
concerning appellant's claim that the time limitation period should
be extended. Appellant did not respond to the agency's request.
ANALYSIS AND FINDINGS
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 reconsideration request 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. United States Postal Service,
EEOC Request No. 05900769 (September 27, 1990).
After a careful review of the record, the Commission finds that
the agency's request does not meet the regulatory criteria of 29
C.F.R. �1614.407(c). The agency has not presented new and material
evidence, nor has it established that any substantive legal or factual
error, or misapplication of established policy or precedent exists
in the previous decision. In addition, the agency has not shown that
the previous decision was of such an exceptional nature as to have
substantial precedential implications. Accordingly, it is the decision
of the Commission to deny the RTR.
Likewise, we find no other reason that would justify reconsidering the
previous decision. At present, the agency is on notice with respect
to the contents of appellant's appeal statement. Also, the previous
decision already directed the agency to supplement the record with
evidence regarding whether appellant was informed that, pending her
receipt of a complaint form, the fifteen-day time limitation period
would be extended. Thereafter, the agency was ordered to issue a new
final decision dismissing appellant's complaint or notifying her that
the agency was processing her complaint. Based on the above, we are
unable to find that the agency has been harmed by not receiving a copy
of appellant's appeal statement.<2> A determination has not been made
with respect to appellant's claim. Prior to any determination being made
by this Commission, the agency will have ample opportunity to investigate
appellant's claim, to supplement the record, and to issue a new decision
that fully addresses this matter.
CONCLUSION
Accordingly, the agency's RTR is DENIED. The decision in EEOC
Appeal No. 01980895 (October 8, 1998) remains the Commission's final
decision in this matter. The agency shall comply with the Order in
our previous decision, as MODIFIED below. There is no further right of
administrative appeal from a decision of the Commission on a request
for reconsideration.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
The agency shall supplement the record with evidence regarding whether
appellant was informed that the fifteen-day limitation period for filing
a timely complaint would be extended, pending appellant's receipt of an
EEO complaint form, which evidence should include, but is not limited
to, an affidavit from the EEO Counselor in Pensacola, Florida, whom
appellant identified as the party who informed her that the limitation
period would be extended.
After completion of the supplemental investigation, the agency shall issue
a new final decision or notify appellant that the agency is processing
her complaint. The supplemental investigation and issuance of the final
decision or notice of processing must be completed within ninety (90)
calendar days of the date this decision becomes final.<3> A copy of the
new final agency decision and/or a copy of the notice of processing
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.
STATEMENT OF RIGHTS - ON RECONSIDERATION
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:
Oct. 14, 1999
____________ ___________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1The record contains a certified mail return receipt that indicates the
previous decision was mailed to the agency's Human Resources Office in
Pensacola, Florida, and was received on October 15, 1998. We note, however
that, by letter dated April 22, 1998, the Commission was informed that the
Pensacola office was no longer the servicing EEO office for the agency and
that future correspondence should be forwarded to an office located in
Arlington, Virginia. Since the previous decision was erroneously mailed to
an office that was no longer processing the agency's EEO matters, we find
that the agency has provided an adequate justification for extending the
30-day time limitation period. See 29 C.F.R. �1614.604(c).
2The determination above should not be interpreted by appellant as
approval of her failure to provide the agency with a copy of her appeal
statement. EEOC Regulation 29 C.F.R. �1614.403(d) provides that "any
statement or brief in support of [an] appeal must be submitted . . . to
the agency within 30 days of filing the appeal."
3The previous decision only allotted thirty days to the agency to complete
the supplemental investigation and to issue either a final decision or
a notice of processing. We, on our own motion, find that ninety days
is a more reasonable period of time.