Albert Morton, Appellant,v.William M. Daley, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionNov 4, 1999
05990375 (E.E.O.C. Nov. 4, 1999)

05990375

11-04-1999

Albert Morton, Appellant, v. William M. Daley, Secretary, Department of Commerce, Agency.


Albert Morton, )

Appellant, )

)

v. ) Request No. 05990375

) Appeal No. 01981609

William M. Daley, ) Agency No. 97-51-0207

Secretary, )

Department of Commerce, )

Agency. )

)

DECISION TO RECONSIDER

On February 16, 1999, the agency initiated a request to the Equal

Employment Opportunity Commission (Commission) to reconsider the decision

in Morton v. Department of Commerce, EEOC Appeal No. 01981609 (January

21, 1999). EEOC regulations provide that the Commission may, in its

discretion, reconsider any previous decision. 29 C.F.R. �1614.407(a). The

party requesting reconsideration must submit written argument or evidence

that 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 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 foregoing reasons, the agency's request to reconsider is denied.

However, the Commission, on its own motion, grants reconsideration.

ISSUE PRESENTED

Whether the action of the previous decision to vacate the final agency

decision which dismissed a portion of the appellant's complaint for

stating the same claim that was pending before or been decided by the

agency or the Commission should be upheld.

BACKGROUND

The appellant filed an EEO complaint in July 1997 which the agency

defined as the appellant alleging he was discriminated against on

the bases of his race (African American), age [born May 18, 1934],

disability [right infra-orbital neuralgia], and reprisal (EEO activity)

when: (1) he received an undesirable reassignment on July 16, 1996,

(2) a position reclassification resulted in a promotion for Employee 1

(white), but was detrimental to the appellant, (3) an office space built

for the appellant as a reasonable accommodation was used for storage,

(4) he was excluded from meetings and decision making and receives no

training or career-enhancing assignments, and (5) on February 21 and 24

of 1997, his supervisors (a) questioned him about his participation in

videotaping an event in an auditorium, (b) treated him with suspicion

when he explained that he had been asked to tape a last minute press

conference, and (c) reprimanded him for not assisting with taping the

event in the auditorium.

The final agency decision dismissed allegation (2), and incidents in

allegation (4) occurring prior to March 20, 1996, in relevant part,

under 29 C.F.R. �1614.107(a) for stating the same claim that was pending

before or has been decided by the agency or the Commission. The decision

explained that the appellant raised allegation (2) in prior complaints

93-51-0386, 94-51-0199 and 94-51-0367, and incidents in allegation (4)

occurring prior to March 20, 1996 in previous complaint 95-51-0429.

The March 20, 1996 date was based on when the EEO investigation of

complaint 95-51-0429 was completed. The agency accepted the remaining

allegations.

On appeal, the appellant argued, in relevant part, that allegation (2)

was not previously raised in complaint 95-51-0429 because he withdrew the

basis of disability. It appears this argument also applies to allegation

(4). The appellant also argued that allegation (2) was not previously

investigated.

The previous decision found that the agency did not submit any

documentation to support the final agency decision. It vacated the

final agency decision, and ordered the agency to conduct a supplemental

investigation and then either accept allegation (2) and the dismissed

part of allegation (4) for processing or issue a new final decision

dismissing allegation (2) and/or part of allegation (4).

On request, the agency submits documentation which it argues supports

the final agency decision. It states that because of the age of

the documents, they were stored off-site, and some were destroyed.

It states that it requested the documents from the records center, but

such requests take weeks to process and were not received by the agency

in time to respond to the appeal. In response, the appellant argues that

the agency had sufficient time to previously obtain the documentation.

He also argues the merits of his claims, which are not at issue herein.

ANALYSIS AND FINDINGS

In order to reconsider the Commission's previous decision, the agency

must present evidence or argument that satisfies one of the criteria of

29 C.F.R. �1614.407. After considering the agency's request, we find that

it has not satisfied the criteria for reconsideration. The documentation

it submits was readily available before the previous decision was issued.

Further, the documentation should have been included in the agency file

to support the final agency decision upon which it was based.

The Commission on its own motion, however, reconsiders the previous

decision. As the agency now provides the documentation upon which it

relied, albeit belatedly, it would cause unneeded delay at this point to

let the previous remand order stand. Further, it would waste judicial

economy and cause potentially conflicting rulings for claims in the

instant complaint to be processed which were in prior complaints.

Allegation (2)--A position reclassification resulted in a promotion for

Employee 1, but was detrimental to the appellant.

The appellant formerly worked as an Audio-Visual Production Specialist,

General Schedule (GS)-11. After an Office of Personnel Management (OPM)

desk audit, his job was reclassified in 1993 to an Audio-Visual Equipment

Operator, Wage Grade (WG)-10. Employee 1's (white, born July 23, 1956)

job was also reclassified to Audio-Visual Equipment Operator, WG-10,

resulting in a pay increase.

The appellant filed the instant complaint in July 1997. The agency

submits prior final agency decisions which show this matter has been

raised in at least two prior complaints. Most recently, the appellant

alleged race, national origin, age, and reprisal discrimination with

regard to the same matter in complaint 95-51-0429, which was filed

in August 1995. The agency addressed the merits of the allegation in

pages 6 and 8 of its final decision on that complaint, and found no

discrimination.<1>

Further, in February 1995, the agency issued a final decision on

complaint 94-51-0367, which was filed in September 1994. The final agency

decision reflects that the appellant alleged discrimination on the bases

of his race, national origin, age, physical disability, and reprisal

when, among other things, as a result of an OPM audit, his position was

reclassified and he was demoted from GS-11 to WG-10, whereas Employee 1

received a promotion via reclassification. The final agency dismissed

this allegation on the grounds that it stated the same claim that was

pending before or had been decided by the agency or the Commission,<2> and

was part of a pending civil action. The Commission's computerized docket

tracking system indicates the appellant did not appeal this decision.

Further, the appellant's decision to only pursue the bases of race,

age, and reprisal in complaint 95-51-0429, does not permit him to

file a subsequent complaint raising the same allegation on the basis

of disability.

Allegation (4)--the appellant was excluded from meetings and decision

making and receives no training or career-enhancing assignments.

In complaint 94-51-0429, which was filed in August 1995, the appellant

also alleged discrimination on the bases of race, national origin,

age and reprisal when (1) he was continually excluded from meetings

and decisions and denied exposure and input into the office's decision

making process, and (2) he was repeatedly denied advancement, training

and mentoring.

The appellant gave specific meaning to his complaint 95-51-0429

allegations in his EEO investigative affidavit thereon. The agency

addressed these matters in its final decision on that complaint, including

a training matter that occurred after the complaint was filed.

Allegation (1) referred to the appellant's contention that he was

excluded from meetings and denied input into the decision making process

regarding the construction of new office space, including shelves and

a workbench in 1994, and the modernization of audio and video equipment

through contracting and purchasing. He affirmed that he was excluded from

modernization meetings in May and June of 1995. The denial of advancement

in allegation (2) referred to the appellant's job being reclassified

in 1993. With regard to the denial of training in allegation (2),

the appellant affirmed that he was never allowed to attend training

classes, seminars and workshops to develop his skills and learn about

new technology methods. He cited a training seminar Employee 1 attended

in October 1995, which the agency recounted in its final decision.

In the instant complaint at issue, i.e., 97-51-0207, the appellant

generally complained, with regard to allegation (4), that he was not

included in any training programs regarding the audio visual program,

that he was left "totally out of the loop" by management and locked out

of the decision making process for over two years, and that it appeared

he was being denied career advancement. The appellant did not further

specify this allegation on appeal or in response to the agency's request

for reconsideration.

Based on the above, we agree with the agency's assessment that except

for time frames, allegation (2) in complaint 95-51-0429 and allegation

(4) of the instant complaint are the same. Since the the final agency

decision on complaint 95-51-0429 addressed the matters the appellant

raised in the investigation completed on March 20, 1996, and he does

not raise any specific incidents with regard to allegation (4) of the

instant complaint, we affirm the agency's finding that allegation (4)

covers the period since March 20, 1996.

CONCLUSION

After a review of agency's request to reconsider, the appellant's

response thereto, the previous decision, and the entire record, the

Commission finds that the agency's request does not meet the criteria

for reconsideration under 29 C.F.R. �1614.407(c). The Commission on its

own motion, however, reconsiders the previous decision. The decision

of the Commission in EEOC Appeal No. 01981609 is VACATED. The agency's

final decision to dismiss allegation (2) and a portion of allegation (4)

is AFFIRMED. This is not a decision on the merits of the appellant's

complaint.

RIGHT TO FILE A CIVIL ACTION (P0993)

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.

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. 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 (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:

Nov. 4, 1999

Date

Frances

M.

Hart

Executive Officer

Executive Secretariat1The appellant

filed an appeal from this final agency

decision, which was docketed as EEOC

Appeal No. 01970502.

2It found that previously, in February 1994, the appellant filed complaint

94-51-0199 alleging discrimination when in July 1993, his position was

reclassified from the GS to WG series. The agency now states the final

agency decision on complaint 94-51-0199 was destroyed, and provides an

unsigned electronic copy of this decision. The copy recounted the above

allegation, which was dismissed on the grounds that the appellant failed

to timely seek EEO counseling. The Commission's computerized docket

tracking system indicates that the Commission closed the appellant's

appeal from the final agency decision on complaint 94-51-0199 on the

grounds that he filed a civil action. The closure occurred in December

1994 under EEOC Appeal No. 01943558.