05980675
11-22-2000
Sharon K. Mitchell, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Sharon K. Mitchell v. Department of Veterans Affairs
05980675
11-22-00
.
Sharon K. Mitchell,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05980675
Previous Request No. 05960656
Appeal No. 01961988
DECISION ON REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission to reconsider the decision in Sharon K. Mitchell v.Hershel
W. Gober, Acting Secretary, Department of Veterans Affairs, EEOC Request
No. 05960656 (January 5, 1998).<1> EEOC regulations provide that the
Commission may, in the exercise of its discretion, grant a request
for reconsideration if the party making the request demonstrates that
the appellate decision involved a clearly erroneous interpretation of
material fact or law, or that the decision will have a substantial impact
on the policies, practices, and operations of the agency. 29 C.F.R. �
1614.405(b).<2>
Complainant filed a series of complaints in which she set forth a claim
of ongoing harassment because of her gender and because she engaged
in prior protected activity. She identified and described well over
100 incidents that took place between January 1991 and January 1996.
In our previous decision, we first identified a time line over which
the incidents allegedly took place. We then divided that time line into
three phases: January 1991 through September 1, 1993; September 2, 1993
through December 1, 1993, and December 2, 1993 through January 1996.
Pursuant to this determination, we made the following findings:
That the agency properly dismissed that portion of the complaint covering
the incidents that occurred before September 2, 1993 which were not
discussed with an EEO counselor;
That the portion of the complaint comprising incidents that took place
between September 2 and December 1, 1993 stated a claim of discriminatory
harassment and reprisal; and
That the incidents that occurred between December 1, 1993, and January
1996 were sufficiently like or related to previously accepted incidents
in that they were indicative of on-going harassment, rather than new
and separate acts of discrimination.
Accordingly, we ordered the agency to investigate that portion of
complainant's complaint that covered incidents which took place on or
after September 2, 1993.
In its request for reconsideration, the agency first argues that the
matters raised in phase (2) of the complaint concerned actions by union
officials, not by the agency's management. We disagree. On page 5 of
the previous decision, we clearly stated:
�[Complainant] never alleged that she was being harassed because of
her position and duties as a union steward. Rather, [complainant]
alleged that, because of her sex and EEO representational activities,
various management officials harassed her and otherwise treated her more
harshly than they treated male union representatives.�
Contrary to what the agency contends in its request for reconsideration,
the previous decision did not order the agency to investigate incidents
regarding the conduct of union officials toward complainant.
Next, the agency appears to be arguing that the previous decision ordered
it to investigate incidents that had been raised in other complaints,
some of which may be pending before or have already been decided by
the Commission. We note that the agency uses the term �allegations�
in place of �incidents.� This language predates the implementation of
the Commission's revised complaint processing regulations, which became
effective in November 1999. The regulations were promulgated, in part,
to correct the problem of complaint fragmentation, which is clearly the
situation here.
When faced with complaints raising multiple incidents, the Commission has
made it clear that it will no longer regard each incident as a separate
allegation, as it had done in the past. In making its argument that
it cannot distinguish between allegations that should or should not be
processed, the agency fails to distinguish between the claim and the
factual evidence offered to support it. EEO Management Directive 110,
p. 5-5 (November 9, 1999). The agency must take care to avoid treating
each piece of evidence offered by complainant as a separate and distinct
allegation, i.e., legal claim. See id. at 5-6. By no means does our
previous order require the agency to re-investigate claims that it already
processed. Rather, it requires the agency, in investigating complainant's
current claim of harassment and reprisal, to treat any incidents that were
addressed in its processing of prior complaints as background evidence
insofar as they are probative of complainant's current harassment claim.
Ferguson v. Department of Justice, EEOC Request No. 05970792 (March 30,
1999).
After reviewing the record in its entirety, we find that the agency's
request does not satisfy either criterion for reconsideration, and
accordingly, the request is denied. The decision of the Commission in
EEOC Request No. 05960656 remains the Commission's final decision.
The agency shall comply with our order in that decision, as modified
below, unless it has already done so. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
ORDER (E0900)
Unless it has already done so, the agency is ordered to process
complainant's claim of discriminatory harassment and reprisal in
accordance with 29 C.F.R. � 1614.108. The investigation shall encompass
those incidents identified by complainant as having occurred between
September 2, 1993, and January 30, 1996. As to incidents that have
been cited as evidence in the agency's processing of other complaints,
the agency shall consider those incidents as background evidence to the
extent that they are probative of complainant's harassment and reprisal
claim in the instant complaint. The agency shall acknowledge to the
complainant that it has received the remanded claims within thirty (30)
calendar days of the date that it receives this decision. 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 that it receives this decision,
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 (K0900)
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)(Supp. V 1993). 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
(R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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
__11-22-00_______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 29 C.F.R. Part 1614 in deciding the present
appeal. The regulations, as amended, may also be found at the Commission's
website at www.eeoc.gov.
2We granted reconsideration rights due to the fact that the previous
decision addressed issues that were raised for the first time therein.