Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 29, 2000
05980879 (E.E.O.C. Mar. 29, 2000)

05980879

03-29-2000

Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


v. Department of the Army

05980879

March 29, 2000

)

Complainant, )

) Request Nos. 05980879

v. ) 05981001

) 05981079

Louis Caldera, ) Appeal Nos. 01976148

Secretary, ) 01973669

Department of the Army, ) 01975283

Agency. )

)

DECISION ON REQUESTS FOR RECONSIDERATION

________ (hereinafter referred to as complainant) timely initiated

requests to the Equal Employment Opportunity Commission (Commission)

to reconsider the decisions in ________ v. Robert M. Walker,

Acting Secretary, Department of the Army, EEOC Appeal No. 01976148

(May 27, 1998); ________ v. Robert M. Walker, Acting Secretary,

Department of the Army, EEOC Appeal No. 01973669 (July 8, 1998); and

________ v. Robert M. Walker, Acting Secretary, Department of

the Army, EEOC Appeal No. 01975283 (July 30, 1998).<1> EEOC Regulations

provide that the Commissioners may, in their discretion, reconsider any

previous decision where the party demonstrates that: (1). the previous

decision involved a 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. 64 Fed.Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. �1614.405(b)).<2>

For the reasons set forth herein, complainant's requests are denied.

EEOC Request No. 05980879

The record in this case reveals that complainant, an Instructor with

the agency's Defense Language Institute, contacted an EEO Counselor and

subsequently filed a formal complaint in July 1997, alleging that she was

discriminated against in reprisal for prior EEO activity when management

encouraged a former student to write a memorandum in March 1996 stating

that complainant had been under the influence of drugs during class,

and submitted the memorandum to the Security Office while withholding

it from complainant.

In its final decision dated August 7, 1997, the agency dismissed

complainant's complaint on the grounds that it stated the same claim

as that raised in a prior complaint. Specifically, the agency stated

that complainant filed a complaint in May 1997 (agency case number

BSEYF09706H0070; Complaint 11) regarding the memorandum in question and

the submission of the memorandum to the Security Office. The agency

indicated that Complaint 11 was pending. The decision in EEOC Appeal

No. 01976148 affirmed the agency's dismissal of the complaint at issue.

In her request for reconsideration, complainant asserted that the agency

misrepresented the facts in her prior complaint. Complainant indicated

that while Complaint 11 was pending an administrative hearing, the agency

had filed a motion requesting that the Administrative Judge issue findings

and conclusions without a hearing. Complainant submitted portions of

the December 1997 testimony of her former Supervisor concerning the

memorandum, as well as a copy of her response to the agency's motion

in Complaint 11. Complainant also included a statement from another

prior student.

As discussed above, the Commission may, in its discretion, reconsider

any previous decision when the party requesting reconsideration submits

written argument which tends to establish that the criteria of 29

C.F.R. �1614.405(b) is met. In order for a case to be reconsidered, the

request must contain specific information which meets the requirements

of this regulation. It should be noted that the Commission's scope of

review on a request to reconsider is limited. Lopez v. Department of

the Air Force, EEOC Request No. 05890749 (September 28, 1989).

After a careful review of the previous decision, complainant's

request for reconsideration, and the entire record, the Commission

finds that complainant's request fails to meet the criteria in 29

C.F.R. �1614.405(b). Specifically, complainant has presented no

evidence to show that the agency's dismissal of the July 1997 complaint

was improper. In 64 Fed.Reg. 37,644, 37,656 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. �1614.107(a)), the regulations

provide that the agency shall dismiss a complaint or portion thereof

which states the same claim that is pending before, or has previously

been decided by the agency or the Commission. In the case at hand, the

record reveals that complainant raised the issue concerning the March 1996

memorandum in her May 1997 complaint, and complainant admitted as much on

appeal.<3> While complainant asserted that the agency is attempting to

misrepresent the facts in her prior complaint, complainant acknowledged

having filed a response to the agency's above-referenced motion with the

Administrative Judge. Consequently, based on our review of the record,

we find that complainant has failed to provide evidence which would

warrant a reconsideration of the decision in EEOC Appeal No. 01976148.

EEOC Request No. 05981001

Complainant contacted an EEO Counselor on December 17, 1996, alleging

sex (female) and reprisal discrimination with regard to a memorandum

signed by her co-workers following a May 1994 staff meeting. Complainant

subsequently filed a formal EEO complaint with regard to the matter on

January 23, 1997, stating that her former supervisor either wrote the

memorandum or directed her co-workers to write it, and that the Dean

failed to take any action. Complainant indicated to the EEO Counselor

that one of her co-workers told her about the memorandum several days

after the meeting, and noted that it contained negative information

regarding complainant. Complainant stated, however, that she was unable

to obtain a copy of the memorandum until December 1996, after she filed

a request under the Freedom of Information Act (FOIA).

In its final decision dated March 13, 1997, the agency dismissed

complainant's complaint on the grounds that she failed to timely contact

an EEO Counselor. The agency stated that complainant had constructive

knowledge of the memorandum shortly after the May 1994 staff meeting.

The decision in EEOC Appeal No. 01973669 affirmed the agency's dismissal

of complainant's complaint.

In her request for reconsideration, complainant reiterated that she

was unable to obtain a copy of the memorandum until 1996, stating

that she could not file a complaint based on unconfirmed information.

Complainant acknowledged that a co-worker told her that a memorandum

had been written; however, she stated that she was either told that

management was unable to locate the document or that it did not exist.

Complainant further stated that she concluded the document did not

exist in 1996, because it was not contained in her personnel files.

Complainant submitted various documents which were already contained in

the record. In response to complainant's request, the agency asserted

that complainant did not satisfy the criteria for reconsideration.

Based upon a review of the record, the Commission finds that complainant's

request for reconsideration fails to meet the criteria set forth in

29 C.F.R. �1614.405(b). EEOC Regulation 29 C.F.R. �1614.105(a)(1)

requires that complaints of discrimination be brought to the attention

of the EEO Counselor within 45 days of the alleged discriminatory event,

or the effective date of an alleged discriminatory personnel action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the limitation period

is triggered under the EEOC Regulations. See, 29 C.F.R. �1614.105(a)(2);

Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988). Thus, the

limitation period is not triggered until a complainant should reasonably

suspect discrimination, but before all the facts that would support a

charge of discrimination have become apparent.

Complainant essentially reiterates her assertion that she was unable to

obtain a copy of the memorandum until 1996. Nevertheless, complainant

acknowledged having been told by a co-worker in May 1994 that a memorandum

had been written which contained negative statements about her. None of

the documents submitted by complainant with her request support her

contention that she was told the memorandum did not exist. Further,

complainant's actions in continuing to request a copy of the document

contradict her assertions that she believed the document did not exist.

The Commission has found that, since the limitation period for contacting

an EEO Counselor is triggered by the reasonable suspicion standard,

waiting until one has "supporting facts" or "proof" of discrimination

before initiating a complaint can result in untimely Counselor contact.

See Bracken v. USPS, EEOC Request No. 05900065 (March 29, 1990).

Accordingly, the Commission finds that the decision in EEOC Appeal

No. 01973669 properly affirmed the dismissal of complainant's complaint.

EEOC Request No. 05981079

Complainant contacted an EEO Counselor in April 1997, and subsequently

filed a formal complaint alleging that she was discriminated against

in reprisal for prior EEO activity when the EEO Manager mishandled and

improperly dismissed a prior complaint (the complaint at issue in EEOC

Request No. 05981001; Complaint 9). Complainant asserted that the

EEO Manager withheld testimony, modified the EEO Counselor's report,

and attempted to prevent her from filing the complaint once she raised

the matter.

Thereafter, the agency dismissed the complaint for failure to state a

claim, indicating that the issue concerning the dismissal of Complaint 9

was pending on appeal before the Commission. The decision in EEOC Appeal

No. 01975283 affirmed the final agency decision. That decision noted

that complainant was attempting to challenge the agency's processing of

Complaint 9, and stated that complainant did not identify any policy or

practice having a discriminatory effect thereon.

In her request for reconsideration, complainant made various allegations

of agency misconduct which she asserted were confusing to the Commission.

Further, complainant stated that the EEO Counselor incorrectly represented

the facts in Complaint 9. Complainant included a copy of the EEO

Counselor's statement completed in January 1997, which complainant signed,

as well as a March 1997 letter from the EEO Manager and a March 1997

memorandum from a co-worker. The agency countered that complainant's

request did not meet the criteria for reconsideration.

After a careful review of the previous decision, complainant's request for

reconsideration, the agency's response thereto, and the entire record, the

Commission finds that complainant's request fails to meet the criteria in

29 C.F.R. �1614.405(b). As stated, complainant's complaint concerns the

processing and dismissal of Complaint 9 addressed above. The Commission

finds no evidence to support complainant's assertions concerning the

suppression of evidence or intentional misrepresentation of facts.

Complainant has also not identified any procedural irregularity warranting

the Commission's intercession in the processing of her complaints.

Accordingly, the Commission finds that complainant has failed to provide

evidence which would warrant a reconsideration of the decision in EEOC

Appeal No. 01975283.

CONCLUSION

After a review of complainant's requests for reconsideration, the previous

decisions, and the entire record, the Commission finds that complainant's

requests fail to meet the criteria of 29 C.F.R. �1614.405(b), and it is

therefore the decision of the Commission to DENY complainant's requests.

The decisions in EEOC Appeal Nos. 01976148 (May 27, 1998), 01973669

(July 8, 1998), and 01975283 (July 30, 1998) remain the Commission's

final decisions. There is no further right of administrative appeal on

a decision of the Commission on this Request for Reconsideration.

STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)

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 WITHIN NINETY (90) CALENDAR DAYS from the date that you receive

this decision. 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 (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:

March 29, 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

(if applicable), and the agency on:

_________________________ __________________________

1Complainant filed her requests with regard to EEOC Appeal Nos.

01976148, 01975283, and 01973669 on June 19, 1998, July 24, 1998, and

August 24, 1998, respectively.

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 appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

3We note that the complainant has failed to show that the testimony of

her former supervisor and the prior student's statement are relevant to

the matter at issue.