05980498
11-17-1999
Charles J. Pollaci, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury,) Agency.
Charles J. Pollaci v. Department of the Treasury
05980498
November 17, 1999
Charles J. Pollaci, )
Complainant, )
)
v. ) Request No. 05980498
) Appeal Nos. 01974515, 01974516
Lawrence H. Summers, ) Agency Nos. 97-1055, 96-1070
Secretary, )
Department of the Treasury,)
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On March 24, 1998, the Department of the Treasury (agency) timely
initiated a request to the Equal Employment Opportunity Commission (EEOC
or Commission) to reconsider the decision in Charles J. Pollaci v.
Department of the Treasury, EEOC Appeal Nos. 01974515 and 01974516
(March 5, 1998).<1> In 64 Fed. Reg. 37644, 37659 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. �1614.405(b)), EEOC regulations
provide that the Commissioners may, in their discretion, reconsider any
previous decision where the party demonstrates that: (1) the previous
decision involved clearly erroneous interpretation of material fact or
law; or (2) the decision will have a substantial impact on the policies,
practices, or operation of the agency. 29 C.F.R. �1614.405(b).
The facts of the case are set out in full in the previous decision,
and are incorporated by reference herein. Briefly stated, complainant
filed two formal EEO complaints raising a total of 14 allegations.
The agency, inter alia, dismissed certain allegations (identified in
the previous decision as allegations 1, 4, 5, 6, and 10) as untimely.
The previous decision vacated the final agency decision in this regard,
noting that the agency had not submitted specific evidence that it had met
its obligation to provide its employees with information regarding time
limits in the EEO process such that constructive knowledge of such time
limits should be imputed to complainant. The previous decision remanded
the case to the agency to conduct a supplemental investigation as to
whether such notice was provided to its employees, and when complainant
learned of the time limit for contacting an EEO Counselor.
In its request for reconsideration, the agency argues that it provided
all of its employees, including complainant, with actual notice of the
time limitation for EEO Counselor contact by means of a December 15,
1992, memorandum distributed to all employees of the Customs Service
(the division of the agency where complainant is employed), and submits
a copy of this memorandum. The agency notes that this memorandum was
distributed within days of one of the incidents of alleged discrimination
included by complainant in his complaints. The agency does not explain
its failure to submit this evidence, which is plainly not new, during the
proceedings below. The agency's request meets none of the criteria for
reconsideration, and so is DENIED. The Commission, however, exercises
its discretion to reconsider the matter on its own motion.
The previous decision remanded the case for the agency to conduct a
supplemental investigation limited to the matter of "whether, during the
relevant time period, it posted EEO information on display, or in some
other manner provided EEO information to complainant, that specifically
referred to the time limit for contacting an EEO Counselor." The record
now contains evidence bearing on the agency's position in this regard,
as noted in the preceding paragraph, as well as complainant's response,
which is detailed below.
Complainant states that at the time the agency distributed the December
15, 1992, memorandum, he was located in a different building than the rest
of his work group and "had extreme difficulties in receiving my regular
work related information, mail, and other correspondence." Complainant
further states that he never received a copy of the subject memorandum
and was never appraised of its existence; that there were no notices
regarding the EEO process posted in his workplace; and that he was not
informed of the time limitation for EEO Counselor contact until after
his formal complaints were filed.
The Commission's regulations require an agency, inter alia, to "[m]ake
written materials available to all employees and applicants informing them
of the variety of equal employment opportunity programs and administrative
and judicial remedial procedures available to them and prominently post
such written materials in all personnel and EEO offices and throughout
the workplace." 29 C.F.R. �1614.102(b)(4). Although the memorandum
satisfies the first part of the agency's obligation under the regulation
-- to make written materials available -- it does not satisfy the second
part of the obligation -- to post such materials throughout the workplace.
In light of the absence of any evidence that the agency did, in fact,
post such information, and complainant's argument regarding whether
such information was made available to him, the Commission finds that
complainant was not aware, actually or constructively, of the time
limitation for EEO Counselor contact until after his formal complaints
were filed. Accordingly, the Commission further finds that allegations
1, 4, 5, 6, and 10 were timely raised, and remands these allegations to
the agency for processing.
Upon review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request does not meet the criteria of 29 C.F.R. �1614.405(b), and
therefore is DENIED. Having reconsidered the matter on its own motion,
the decision in Appeal Nos. 01974515 and 01974516 is MODIFIED as set
forth above, and as modified, is AFFIRMED. There is no further right
of administrative appeal from the decision of the Commission on this
request for reconsideration.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. See 64 Fed. Reg. 37644, 37656-57 (1999).
The agency shall acknowledge to complainant that it has received the
remanded allegations within thirty (30) calendar days of the date this
decision becomes final. The agency shall issue to complainant a copy
of the investigative file and also shall notify complainant 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 complainant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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
complainant. If the agency does not comply with the Commission's order,
complainant may petition the Commission for enforcement of the order.
29 C.F.R. �1614.503 (a). 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. 37644, 37659-60 (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, 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 complainant files a civil action, the administrative
processing of the complaint, including any petition for enforcement,
will be terminated. See 64 Fed. Reg. 37644, 37659 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. �1614.409).
RIGHT TO FILE A CIVIL ACTION (Q0993)
This decision affirms the agency's final decision 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 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.
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 EIGHTY (180) CALENDARS 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:
Nov. 17, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within (5) calendar days of mailing. I certify that the
decision was mailed to complainant, complainant's representative (if
applicable), and the agency on:
______________________ ______________________
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. 37644 (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.