05970390
01-04-1999
Albert W. Ide, Appellant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Albert W. Ide v. Department of Energy
05970390
January 4, 1999
Albert W. Ide, )
Appellant, ) Request No. 05970390
) Appeal No. 01963071
v. ) Agency No. 9625BPA
)
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
________________________________)
DENIAL OF RECONSIDERATION
On January 22, 1997, the Department of Energy (hereinafter referred
to as the agency) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision in
Ide v. Dep't of Energy, EEOC Appeal No. 01963071 (December 18, 1996).
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 or 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, the agency's
request is denied.
ISSUE PRESENTED
The issue presented is whether the agency's request meets any of the
criteria for reconsideration.
BACKGROUND
In December 1995, appellant filed an EEO complaint alleging discrimination
on the bases of physical disability and reprisal when he was subjected
to "[a]nother round of personal slander and harassment, apparently in
retaliation for a previous complaint or request for a witness statement."
Appellant asserted that "[the Manager, Control Systems Design] appeared
to be the instigator of a series of incidents starting the morning of
9/22/95[.]" The EEO counselor's report showed that appellant complained of
verbal abuse in the form of anger toward him by the named individual but
did not relate any specific words or actions which led him to conclude
that the individual was angry. Appellant advised the EEO counselor
that the incident took place near his desk. The agency dismissed the
complaint for failure to state a claim.
Upon review, the previous decision reversed the FAD and remanded the
complaint for processing. The previous decision noted that the record
appeared not to contain a complete copy of appellant's formal complaint,
i.e., appellant's statement ended with a comma rather than a period and
there was no continuation of his statement on the back of the form or
another piece of paper. The previous decision nonetheless found that
appellant's complaint stated a claim. In this regard, the previous
decision found that the FAD omitted that part of appellant's statement
alleging harassment. Because appellant had alleged harassment based on
physical disability and reprisal, the previous decision found that he
had alleged a personal harm or loss in connection with his employment
and that he therefore had stated a claim.
In a footnote, the previous decision noted appellant's reluctance to
provide detailed information pertaining to his complaint for fear of
reprisal but advised that he would have to provide any information
requested by the agency or risk the dismissal of his complaint.
The previous decision informed appellant that he should contact an EEO
counselor if he believed that he was being subjected to further acts of
reprisal as a result of the instant complaint.
In its reconsideration request, the agency contends that the record
contained a complete copy of appellant's complaint and that the previous
decision erred in finding that the mere assertion of "harassment"
states a claim. The agency argues�inter alia--that some amount of
information must be provided prior to the acceptance of a case to allow
a determination as to the "purview" of the allegation.
In response, appellant contends that the harassment has increased since
the issuance of the previous decision. He also contends that when he
provides specifics about his complaints that information then is used
in the "harassment campaign."
ANALYSIS AND FINDINGS
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 at least one of the criteria
of 29 C.F.R. �1614.407(c) is met. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
The agency contends that the mere assertion of "harassment" does not
state a claim and that some amount of information must be provided prior
to the acceptance of a case to allow a determination as to the "purview"
of the allegation.
Record evidence showed that appellant alleged on-going harassment based
on disability and reprisal, which most recently involved "[a]nother
round of personal slander...." In this regard, appellant identified
an agency official, who had been asked for a witness statement in a
prior complaint, as "the instigator of a series of incidents beginning
on 9/22/95[.]" Prior to dismissing the complaint, the agency did not
request any additional information from appellant and/or advise him that
his complaint would be dismissed if he did not provide same within a
given period of time.
Based on these facts, the Commission finds that the previous
decision properly reversed the FAD and remanded the complaint for
processing. Because the agency's request fails to meet the criteria
for reconsideration, the Commission denies the request for that reason.
The Commission reminds appellant that he must provide the agency with
any requested information or, pursuant to the regulations, his complaint
can be dismissed for failure to cooperate. See 29 C.F.R. �1614.107(g).
CONCLUSION
After a review of the agency's request for reconsideration, the
appellant's response, the previous decision, and the record as a
whole, the Commission finds that the agency's request fails to meet
the criteria of 29 C.F.R. �1614.407(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 01963071
remains the Commission's final decision. There is no further right of
administrative appeal from a decision of the Commission on a request
for reconsideration.
ORDER (E1092)
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint within thirty (30) calendar
days of the date this decision becomes final. 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 this decision becomes final, 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 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 (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--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 4, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat