05a00885
07-21-2000
Stephanie Sharsky, Complainant, Rodney E. Slater, Secretary, Department of Transportation, Agency.
Stephanie Sharsky, )
Complainant, ) Request No. 05A00885
) Appeal No. 01975079
) Agency No. 1-96-050
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Stephanie
Sharsky v. Department of Transportation, EEOC Appeal No. 01975079
(June 8, 1998).<1> EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates that: (1) the appellate decision involved
a clearly erroneous interpretation of material fact or law; or (2)
the appellate decision will have a substantial impact on the policies,
practices, or operations of the agency. See 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.405(b)).
BACKGROUND
In Agency No. 1-96-050, complainant alleged six incidents of
discrimination; claim (5) stated:
Management and non-management employees subjected complainant to
continuous harassment, ridicule and retaliation during 1993 in violation
of a 1991 EEO settlement in order to discredit her in reprisal for
reopening and filing discrimination complaints. Further, she was
being treated as a temporary staff specialist in violation of the 1991
settlement which gave her a permanent reassignment.
The agency issued a final decision on March 8, 1996, dismissing, inter
alia, claim (5). Complainant appealed to this Commission, which reversed
the agency's decision. See Sharsky v. Department of Transportation,
EEOC Appeal No. 01963579 (February 10, 1997). Concerning claim (5),
the Commission found that complainant alleged both an independent
claim of discrimination and a breach of the 1991 settlement agreement.
The Commission ordered the agency to investigate the independent claim,
and to address the acceptability of the breach claim.
On remand, the agency dismissed claim (5) in its entirety for alleging the
same matters raised in complaints pending with an EEOC Administrative
Judge (AJ). Complainant appealed the dismissal to the Commission.
See Sharsky v. Department of Transportation, EEOC Appeal No. 01975079
(June 8, 1998). The Commission found that complainant previously raised
the harassing incidents as an independent claim in Agency No. 95-0113,
also pending before an AJ. However, the Commission found that the breach
claim was not raised in a prior complaint. Nonetheless, the Commission
discovered enough information in the record to determine the merits of
complainant's claim of breach, and found no breach of the agreement.
Complainant requested reconsideration of EEOC Appeal No. 01975079.
While her request was pending, new regulations went into effect
prohibiting the dismissal of a portion of any complaint. Pursuant
to the new regulations, the Commission administratively closed EEOC
Request No. 05980907, and remanded the complaint for consolidation with
complainant's accepted claims. The Commission's failure to address the
breach of settlement claim was inadvertent. To redress this oversight,
the Commission re-docketed complainant's request for reconsideration as
EEOC Request No. 05A00885. Accordingly, the present decision will only
address complainant's claim of breach of the 1991 settlement agreement.
On reconsideration, complainant argues that pursuant to EEOC Appeal
No. 01963579, the agency only had authority to dismiss the breach claim
for timeliness, or to investigate the claim. According to complainant,
the agency did not have authority to address the breach claim for any
other purpose, and the Commission should not have allowed any deviation
from its prior order. Further, complainant asserts that the Commission
lacked the authority to address the merits of the breach claim, and did
not have a complete record from which to determine breach.
ANALYSIS AND FINDINGS
The Commission finds that the record, including a copy of the November
8, 1991 settlement agreement, a notice of reassignment, and a notice of
complainant's disability retirement, was sufficient for the Commission
to determine whether the agency breached the agreement. Its decision,
based on the plain language of the agreement, was correct. Further,
the Commission notes that it has the authority to address the merits of
breach claims regardless of whether the agency has addressed the matter.
See 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified as 29 C.F.R. �
1614.504(b)) (allowing claimants to appeal claims of breach to the
Commission despite the agency's failure to respond to the claim).
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to DENY the request. The decision
in EEOC Appeal No. 01975079 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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. 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.
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:
July 21, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.