05980089
01-15-1999
Van J. Ross, Appellant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Van J. Ross v. Department of Commerce
05980089
January 15, 1999
Van J. Ross, )
Appellant, )
) Request No. 05980089
v. ) Appeal No. 01971786
)
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On October 25, 1997, Van J. Ross (hereinafter referred to as appellant)
initiated a request to the Equal Employment Opportunity Commission
(Commission) to reconsider the decision in Van J. Ross v. William Daley,
Secretary, Department of Commerce, EEOC Appeal No. 01971786 (September 26,
1997), received by appellant on October 1, 1997. 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 properly
determined that the agency correctly dismissed appellant's alleged
disability as a basis for discrimination in his complaint.
BACKGROUND
The record in this case reveals that appellant filed a formal complaint
alleging that he had been subjected to race (African-American), age (49),
and disability ("ex-offender") discrimination when he was not selected
for employment. During counseling, appellant indicated that he was
told he could not be hired because of his past criminal record. In its
final decision dated November 15, 1996, the agency accepted appellant's
complaint for processing, but limited the bases for discrimination to
race and age. The agency asserted that appellant failed to state a claim
of disability discrimination based upon his status as an ex-offender.
The previous decision affirmed the final agency decision. The previous
decision noted that, in his formal complaint and during EEO counseling,
appellant claimed disability discrimination based only upon his status
as an ex-offender, which was not a recognized disability under the
Rehabilitation Act.
In his request for reconsideration, appellant indicated that he
received treatment from the state Department of Rehabilitative Services.
Appellant included the names of the doctor who treated him, and referenced
a treatment facility.
The agency did not respond to appellant's request for reconsideration.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of the
criteria of 29 C.F.R. �1614.407(c) is met. In order for a case to be
reconsidered, the request must contain specific information which meets
the requirements of this regulation. For the reasons set forth below,
the Commission grants appellant's request for reconsideration.
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal
of a complaint which fails to state a claim within the meaning of 29
C.F.R. �1614.103. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R.� 1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (Apr. 21, 1994).
The previous decision correctly noted that appellant's status as an
ex-offender does not state a claim of discrimination within the purview
of the EEOC Regulations. The record, however, shows that appellant
previously sought treatment for an apparent psychological condition.
Specifically, on appeal and in his request for reconsideration, appellant
stated that he sought psychological treatment from 1975 until 1981, and
again in the 1990s. Accordingly, the Commission finds that appellant
has stated a claim of disability discrimination sufficient to warrant
an investigation on the merits of the allegation.<1>
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request meets the criteria of 29 C.F.R. �1614.407(c)(2), and it is
therefore the decision of the Commission to GRANT appellant's request.
The decision in EEOC Appeal No. 01971786 (September 26, 1997) and the
final agency decision are hereby REVERSED. The agency shall comply with
the terms of the Order set forth below. There is no further right of
administrative appeal on a decision of the Commission on this Request
for Reconsideration.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date the agency receives this decision. 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 the agency receives this decision, 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 acknowledgement to appellant and a copy
of the correspondence that transmits the investigative file and notice
of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THAT 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 REQUEST FOR 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:
JAN 15, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1The decision herein makes no findings regarding whether appellant's
condition constitutes a disability for purposes of the Rehabilitation Act.