05991100
08-25-2000
Carol D. Redmon, Complainant, v. Hearing No. 250-95-8126X Janice R. Lachance, Director, Office of Personnel Management, Agency.
Carol D. Redmon, )
Complainant, ) Request No. 05991100
) Appeal No. 01990627
v. ) Agency No. 94-32
)
Hearing No.
250-95-8126X
Janice R. Lachance, )
Director, )
Office of Personnel Management, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On August 12, 1999,<1> Carol D. Redmon (complainant) timely initiated
a request to the Equal Employment Opportunity Commission (Commission)
to reconsider the decision in Carol D. Redmon v. Office of Personnel
Management, EEOC Appeal No. 01990627 (July 9, 1999).<2> EEOC regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 64 Fed. Reg. 37,644, 37,656 (1999)
(to be codified and hereinafter referred to as EEOC Regulation 29
C.F.R. � 1614.405(b)). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following two criteria: the appellate decision involved a clearly
erroneous interpretation of material fact or law; or the decision will
have a substantial impact on the policies, practices or operations of
the agency. Id. For the reasons set forth herein, complainant's request
is GRANTED in part.
ISSUES PRESENTED
The issue presented is whether the appellate decision involved a clearly
erroneous interpretation of material fact or law when it identified two
claims raised by the complaint; affirmed the dismissal of �claim 1� for
untimely EEO counselor contact; and affirmed the dismissal of �claim 2�
for failure to state a claim.
BACKGROUND
When the matters at issue arose, the complainant was employed as a
Supervisory Staff Attorney by the Social Security Administration (SSA)
in Knoxville, Tennessee. On March 29, 1993, the Office of Personnel
Management (agency) opened the Administrative Law Judge (ALJ) Examination
on a continuous basis (Announcement No. 318). The complainant submitted
a Supplemental Qualifications Statement and other application materials
to the agency pursuant to Announcement No. 318 and subsequently completed
two additional portions of the ALJ Examination: a Panel Interview and
a Written Demonstration. Meanwhile, the agency completed a fourth
Examination component, the Personal Reference Inquiry. On October
23, 1993, the complainant received a Final Rating Notice informing
her that the agency had placed her on the Register of ALJ Eligibles
(ALJ Register) with a total score of 73.9. On November 8, 1993,
the complainant requested that the agency's ALJ Ratings Appeals Board
reconsider her final rating, alleging among other things that the ALJ
Examination process discriminated against her based on gender and age.
While her ratings appeal was pending, on or about March 3, 1994, the
complainant learned that SSA had hired individuals for ALJ positions
from a Certificate of Eligibles the agency had prepared for SSA from
the ALJ Register. The complainant contacted an EEO counselor at SSA
who recommended that she seek counseling from the agency. On March
10, 1994, the complainant informed an agency EEO counselor that she
believed she had not been selected for an ALJ position on March 3, 1994,
because she had received a non-competitive final rating on the agency's
ALJ Examination. According to the Counselor's Report, the complainant
alleged that the agency's administration of the ALJ Examination was
intentionally discriminatory against women and that the ALJ Examination
also had an adverse impact on women over 40.<3>
On March 24, 1994, the agency's Appeals Board informed the complainant
that it was not changing her final rating. The Board also informed
the complainant that she could recompete in any of the parts of the
examination one year after her receipt of the Notice of Rating.
On July 3, 1994, the complainant filed a formal complaint alleging
discrimination based on her sex and age. The complaint identified the
most recent date of the alleged discrimination as June 1994, when new
ALJs were hired.
The agency acknowledged receipt of the complaint on July 27, 1994.
The acknowledgment letter indicated that the complainant had alleged that
the agency discriminated against her based on her sex and age regarding
unfair test scores and the rating process used to score her application
for the ALJ position. The letter indicated that the complainant also
alleged that the agency had administered the examination process in an
arbitrary and capricious manner with discriminatory effects on women
over 40 years of age.
The complainant subsequently retook parts of the ALJ Examination. On July
5, 1995, the agency notified the complainant that her new final rating
was 81.0. On October 22, 1995, the agency revised the rating to 81.6.
On June 18, 1996, the agency again notified the complainant that her
ALJ rating had been changed and that the new rating, 87.1, superseded
any previous notice she had received. The record demonstrates that in
1996, the agency reviewed the applications of all the ALJ Examination
candidates following an investigation by the agency's Inspector General
(IG). The IG's investigation determined that a number of a rating
official's signatures for the Supplemental Qualifications Statement
portion of the ALJ Examination in 1993 had been forged.
Meanwhile, the agency investigated the instant complaint and notified the
complainant of her right to request a hearing before an Administrative
Judge. The complainant requested a hearing. On July 13, 1998, while
the complainant's Motion to Compel Discovery was pending before the
Administrative Judge, the agency moved that the complaint be dismissed.
The Administrative Judge granted the agency's motion based on the agency's
contentions and remanded the complaint to the agency for dismissal.
The agency issued its final decision on October 2, 1998. Therein,
the agency determined that the complainant alleged that the agency
discriminated against her based on her sex and age when she was not
selected for an ALJ position, and the complainant also alleged unfair test
scores and rating process. The decision indicated agreement with the
Administrative Judge that the nonselection �allegation� failed to state
a claim because the complainant failed to show that the agency named in
the complaint had failed to select her for a position. The decision
also agreed that the ALJ Examination claim was untimely because the
complainant's initial EEO contact occurred almost five months after
her receipt of her ALJ Examination scores, and almost four months after
she had evidenced in her Appeals Board appeal her belief that her ALJ
Examination scores were discriminatory. The decision further agreed that
the Appeals Board appeal was insufficient to constitute initiation of
the EEO process because the individuals processing the internal appeal
were not shown to be individuals that were �logically connected� with
the EEO process.
On appeal, the complainant contended, among other things, that she had
raised two claims in her EEO complaint: (1) disparate treatment on the
complainant based on her gender and age in the ALJ examination; and (2)
disparate impact in that the ALJ examination, as designed and administered
by the agency, discriminates on the basis of gender and age and does
not comply with the Uniform guidelines on Employee Selection Procedures
(1978) (UGESP). The complainant contended that only the first claim had
been addressed in the dismissal decision. The complainant renewed her
contention that the agency should not have dismissed her complaint because
the agency's design, implementation, and scoring of the ALJ examination
was an ongoing discriminatory process. The complainant further contended
that the Commission should not require her to file a new complaint for
each new or amended rating on each of the multiple occasions on which
the agency prepares a register or certificate of candidates. Finally,
the complainant contended that to affirm the dismissal of her complaint
would require her to undergo the discriminatory process again before
refiling her complaint.
The appellate decision noted that the final agency decision identified
two claims of discrimination based on sex and age: (1) the rating and
scoring process used by the agency in evaluating qualifications for ALJ
positions was unfair; and (2) she was not selected for an ALJ position.
As to �claim 1,� the appellate decision indicated that the Commission has
adopted a �reasonable suspicion� standard to determine when the 45-day
time limitation for EEO counselor contact is triggered. The decision
also indicated that in determining whether a continuing violation is
present, it is important to consider whether the complainant had prior
knowledge or suspicion of discrimination and the effect of this knowledge.
The appellate decision found that the complainant had not shown that
she contacted an agency EEO counselor or even the SSA counselor within
the requisite 45 days of her suspicion of discrimination. The appellate
decision rejected the complainant's contention that because the selection
process and the certification of ALJ eligibles by the agency were ongoing
processes, the discrimination continued each time she received a new
rating and each time the agency certified eligibles for ALJ positions
to employing agencies. The appellate decision found that the agency's
subsequent ratings of the complainant and the certification of eligibles
were not independent acts that could be used to trigger a new limitations
period, but rather, were actions that resulted from the original rating
alleged to be discriminatory. In addition, the appellate decision found
the continuing violation theory inapplicable because the complainant
suspected discrimination in November 1993. The appellate decision
further found that the complainant's initiation of the Appeal Board
appeal did not toll the time limitation for EEO counselor contact.
Finally, the appellate decision found that �claim 2� failed to state
a claim because the complainant had not shown that the agency failed to
select her for an ALJ position.
On request for reconsideration, the complainant contends, among
other things, that the appellate decision involved clearly erroneous
interpretations of material fact and law. Specifically, the complaint
contends that the appellate decision misstated the issues raised in
her complaint and failed to understand that she is challenging unlawful
employment practices by the agency as gatekeeper to all ALJ selections.
In addition, the complainant contends that the appellate decision's
finding of untimeliness was based on a misinterpretation of law regarding
her continuing violation claim.
ANALYSIS AND FINDINGS
The Commission finds that the appellate decision contains a clearly
erroneous interpretation of material fact as to the definition of
the claims raised by the July 3, 1994 complaint, and also contains an
erroneous interpretation of continuing violation law as it applies to
the complaint claims. Therefore, the Commission grants the complainant's
request for reconsideration of the appellate decision.
Definition of Complaint Claims Against the Agency
The agency's formal complaint form does not provide a space for
complainants to describe their claims of discrimination. The form asks
only that complainants identify the allegedly discriminating agency
office, the date of the most recent alleged discrimination, and the
bases of the alleged discrimination. Under these circumstances, the
Commission must look to the EEO Counselor Report to determine the claims
raised by the complaint at issue. The EEO Counselor's Report indicates
that the complainant alleged she was not selected for a position as an
ALJ on March 3, 1994, because she had received a non-competitive final
rating on the agency's ALJ Examination. According to the Counselor's
Report, the complainant also alleged that the agency's administration
of the ALJ Examination was intentionally discriminatory and that the
ALJ Examination also had an adverse impact on women over 40. Based on
the EEO Counselor's Report and on the complainant's formal complaint
identification of the Office of Administrative Law Judges (OALJ) as the
office responsible for the alleged discrimination, the Commission finds
that the complainant alleged both disparate treatment discrimination
and/or disparate impact discrimination regarding the agency's design,
implementation, and scoring of the ALJ Examination.
Timeliness of the EEO Counselor Contact
EEOC Regulation 64 Fed. Reg. 37,644, 37,656 (1999) (redesignating EEOC
Regulation 29 C.F.R. � 1614.107(b) as 29 C.F.R. � 1614.107(a)(2))
requires agencies to dismiss a complaint or a portion of a complaint
which fails to comply with the time limitations set forth in 29 C.F.R. �
1614.105(a). EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that an
aggrieved person initiate contact with an EEO counselor within 45 days
of the date of the matter alleged to be discriminatory or, in the case
of a personnel action, within 45 days of the effective date of the action.
However, the Commission repeatedly has held that the normal time limit for
contacting an EEO counselor may be suspended when a complainant alleges
facts sufficient to constitute a continuing violation. See, e.g.,
Johnson v. Social Security Administration, EEOC Request No. 05950288
(June 27, 1996); Woljan v. Environmental Protection Agency, EEOC
Request No. 05950361 (October 5, 1995); Ford v. Department of Health
and Human Services, EEOC Request No. 05940606 (October 27, 1994).
A continuing violation is a series of interrelated discriminatory
acts, at least one of which falls within the filing period, or the
maintenance of a discriminatory system or policy before and during the
filing period. Id.; Valentino v. United States Postal Service, 674
F.2d 56, 65 (D.C. Cir. 1982); accord: Jensen v. Frank, 912 F.2d 517,
522-23 (1st Cir. 1990) (serial and systemic continuing violations);
and Haithcock v. Frank, 958 F.2d 671, 678 (6th Cir. 1992) (evidence
of present discriminatory activity or a longstanding and demonstrable
policy of discrimination).
In cases where a system or policy of discrimination is sufficiently
alleged, it is the ongoing program of discrimination, rather than
any of its particular manifestations, that is the subject of attack.
Reed v. Lockheed Aircraft Corp, 613 F.2d 757, 762 (9th Cir. 1989);
Shehadeh v. Chesapeake and Potomac Telephone Co. of Maryland, 595 F.2d
711, 724-25 (D.C. Cir. 1978). Thus, when an employee sufficiently
alleges that the employer operates a discriminatory system, policy,
or employment practice which is maintained into the 45-calendar-day
time period for EEO counselor contact, the employee's EEO counselor
contact may be deemed timely even though the employee has not been
denied a specific employment benefit within the 45-calendar-day period.
Oltmans v. Department of the Treasury, EEOC Request No. 05910890
(March 19, 1992); accord: Beavers v. American Cast Iron Pipe Co., 975
F.2d 792, 797-98 (11th Cir. 1992) (insurance coverage policy); Rendon
v. AT&T Technologies, 883 F.2d 388, 395-96 (5th Cir. 1989) (allegedly
discriminatory promotion system); Serpe v. Four-Phase Systems, Inc.,
718 F.2d 935, 937-38 (9th Cir. 1983) (allegedly discriminatory transfer
system); and Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241,
249 (5th Cir. 1980) (allegedly discriminatory employment test).
To hold otherwise would require employees to delay the filing of their
informal EEO complaints until the employer subjects them to additional
acts of alleged discrimination. Douglas et al. v. Department of the Army,
EEOC Appeal Nos. 01964846 et al. (July 1, 1997). Such delays would
thwart the primary objective of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. 2000e et seq., which the Supreme Court has
described as a "prophylactic one�: �to achieve equality of employment
opportunities and remove barriers that have operated in the past to
favor an identifiable group of white employees over other employees."
Albemarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975), quoting Griggs
v. Duke Power Co., 401 U.S. 424, 429-430 (1971). See also 29 C.F.R. �
1614.102(a) (EEO program requirements). Unnecessary delays in EEO
counselor contact may also result in increased employer liability for
additional acts of discrimination which the employer could prevent if
alerted to the systemic nature of the alleged discrimination. Douglas,
supra.
It is undisputed that the agency continued to accept applications and to
administer the ALJ Examination as of the date of the complainant's EEO
counselor contact. Moreover, applicants who received a final eligible
rating under Announcement 318 were permitted to file new applications
under the same announcement one year after the issuance of their eligible
ratings. The record also demonstrates that the agency opposed discovery
requests in 1996 in part because, purportedly, disclosure of the requested
documents would destroy the usefulness of the ALJ Examination, force the
agency to close the ALJ Examination, and require the agency to develop a
new examination. Based on this information, the Commission finds that the
administration of the allegedly discriminatory ALJ Examination was ongoing
at the time of the complainant's EEO counselor contact. Because the
complainant is challenging allegedly discriminatory employment practices,
i.e, the design, implementation, and scoring of the ALJ Examination,
that continued within the 45-calendar-day time period for EEO counselor
contact, the Commission finds the complainant's EEO counselor contact
was timely even though she did not receive an ALJ Examination Rating
Notice within the 45-day period that preceded her March 10, 1994 EEO
counselor contact. See Gonzalez, supra.
The Commission also finds that the complainant was, and continues to be,
adversely affected by the continuing administration of the allegedly
discriminatory ALJ Examination. The record demonstrates that even after
the complainant received her first Notice of Final Rating in October 1993,
the agency continued to add additional applicants to the Register based
on new ratings derived from the administration of the same allegedly
discriminatory ALJ Examination.<4> It appears that the complainant's
relative placement on the Register continued to change based on the
agency's continuing administration of the allegedly discriminatory ALJ
Examination. The complainant's relative placement on the Register was
affected again when she retook portions of the ALJ Examination, resulting
in new ratings in July 1995 and October 1995, and when the agency, sua
sponte, changed numerous ratings, including the complainant's rating,
on or about June 1996. The complainant's relative placement on the ALJ
Register is important because the agency issues Certificates of Eligibles
to agencies that want to hire individuals for ALJ positions. The agency
derives each Certificate of Eligibles from the ALJ Examination applicants'
relative placements on the ALJ Register at the time a Certificate of
Eligibles is compiled.
Avoidance of Fragmentation of Complaints
The complainant contended on appeal that the Commission should not
require her to file a new complaint for each new or amended rating.
The Commission agrees. As explained in the introduction to the revised
1614 Regulation, the Commission believes that agencies are not properly
distinguishing between factual allegations in support of a legal claim
and the legal claim itself, resulting in the fragmentation of some claims,
including claims that are especially susceptible to fragmentation such as
harassment claims and continuing violation claims. 64 Fed. Reg. 37,644,
37,648 (1999). The fragmentation of claims is undesirable because
it unnecessarily multiplies complaints and can improperly render
non-meritorious, otherwise valid and cognizable claims. Id.
The revised 1614 Regulation, found at 64 Fed. Reg. 37,644, 37,656 (1999)
(to be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.106(d), provides that a complainant may amend a complaint at any time
prior to the conclusion of the investigation to include �issues or claims�
like or related to those raised in the complaint. The same regulation
provides that after requesting a hearing, a complainant may file a motion
with the administrative judge to amend a complaint to include �issues
or claims� like or related to those raised in the complaint. A claim
is an assertion of an unlawful employment practice or policy for which,
if proven, there is a remedy under the federal equal employment statutes.
EEO Management Directive (MD) 110, as revised, November 9, 1999 (EEOC-MD
110), Chapter V., Section III.A.1 at 5-5.
In the instant case, the Commission finds that the complainant's 1995
and 1996 ratings constitute new instances when she was subjected to
the same allegedly discriminatory ALJ Examination challenged in her
July 3, 1994 complaint. The Commission finds that the complainant
is not raising new �issues or claims� of discrimination, but rather,
points to additional occasions when she was subjected to one or more
of the same allegedly unlawful employment practices she challenged in
her July 3, 1994 complaint, i.e., disparate treatment and disparate
impact discrimination in the design, implementation, and scoring of the
ALJ Examination. Therefore, the Commission finds that the complainant's
1995 and 1996 ratings should be treated as new incidents that are part
of her existing discrimination claims. See generally, EEOC-MD 110,
Chapter V, Section III.B.1. at 5-10.
�Claim 2"
Finally, the appellate decision found that �claim 2� failed to state a
claim against the agency because the complainant had not shown that the
agency failed to select her for an ALJ position. As discussed above,
the agency's EEO Counselor's Report indicates that the complainant
alleged she was not selected by the SSA for a position as an ALJ on
March 3, 1994, because she had received a non-competitive final rating
on the agency's ALJ Examination. We note, however, that the agency did
not make the decision not to select complainant and the agency was not
responsible for the nonselection action at issue. Therefore, we find
that the previous decision properly found that �claim 2" failed to state
a claim against the agency.
CONCLUSION
After a review of the complainant's request for reconsideration,
the appellate decision, and the entire record, the Commission finds
that the request meets the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to GRANT the request in part.
The decision of the Commission in Appeal No. 01990627 (July 9, 1999) is
hereby REVERSED in part; the final agency decision is hereby REVERSED
in part; and �claim 1" is REMANDED for further processing in accordance
with the ORDER below. The dismissal of �claim 2" remains AFFIRMED.
There is no further right of administrative appeal on the decision of
the Commission on a Request to Reconsider.
ORDER
Within five (5) calendar days of the date it receives this Decision and
Order, the agency shall send a letter to the Washington Field Office (WFO)
notifying the WFO of the Commission's intent that the complainant's July
3, 1994 complaint be docketed and assigned to an Administrative Judge
for processing. The agency shall attach a copy of this Decision and
Order to its docketing and assignment request letter.
Within fifteen (15) calendar days of the date the agency receives this
Decision and Order, or within twenty (20) calendar days of the date this
Decision and Order is mailed, whichever occurs first, the agency shall
forward the complaint file to the WFO.
Within thirty-five (35) calendar days of the date this decision and Notice
are mailed, the agency shall send to the Compliance Officer referenced
below: a copy of the agency's docketing and assignment request letter,
and proof that the complaint file has been received by the WFO.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (T0400)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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:
August 25, 2000
_______________ ______________________________
Date Frances M. Hart
Executive Officer Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative,
and the agency on:
DATE
Equal
Employment
Assistant1The
complainant
initially
sent
her
request
for
reconsideration
to
the
agency
and
to
the
Commission's
Washington
Field
Office
on
August
12,
1999.
She
resubmitted
her
request
to
the
Commission's
Office
of
Federal
Operations
on
August
27,
1999.
2On 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 request. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
3According to the Counselor's Report, an agency official maintained that
the ALJ Examination was not designed to discriminate. He indicated,
however, that the Examination placed individuals with limited trial or
courtroom experience at a disadvantage.
4According to the affidavit of the OALJ Director, prepared on November 23,
1994, the OALJ was in the process of completing a third examining cycle.