Daniel J. Tramontozzi, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 5, 1999
05991005 (E.E.O.C. Nov. 5, 1999)

05991005

11-05-1999

Daniel J. Tramontozzi, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Daniel J. Tramontozzi, )

Appellant, )

) Request No. 05991005

v. ) Appeal No. 01983444

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs, )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

INTRODUCTION

The Department of Veterans Affairs timely initiated a request to the

Commission to reconsider the decision in Tramontozzi v. Department

of Veterans Affairs, EEOC Appeal No. 01983444 (July 19, 1999). EEOC

regulations provide that the Commission may, in its 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, regulation,

or material fact, or a misapplication of established policy, 29

C.F.R. �1614.407(c)(2); or 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 below, the agency's request is GRANTED.

ISSUE

The issue presented herein is whether the previous decision properly

reversed the agency's decision to dismiss three of appellant's allegations

on the grounds that they were not brought to the attention of an EEO

counselor.

BACKGROUND

Appellant filed an EEO complaint containing fifteen allegations that

he was subjected to unlawful discrimination when, in relevant part,

he was not:

(1) selected for the position of Public Affairs Specialist GS-12, VA

Announcement No. 91-81 (1991);

(2) upgraded to the GS-1715-12 level as promised by the Chief of

Rehabilitation Medical Service (January 2, 1993 - April 6, 1994);

(3) selected for the position of Public Affairs Specialist, GS-11/12,

VA Announcement No. 93-81 (1993);

(4) selected for the position of EEO Manager, GS-260-12/13, VA

Announcement No. 93-82 (1993); . . . and

(15) selected for the position of EEO Program Manager, VA Announcement

No. 97-08, (December 23, 1996).<1>

In its final decision, the agency accepted allegations (2) and (15) for

investigation. Allegations (1), (3), and (4) were dismissed pursuant

to 29 C.F.R. �1614.107(b) as matters not brought to the attention of an

EEO counselor.

In our previous decision, we ruled that, while appellant was not counseled

on the events contained within allegations (1), (3), and (4), they should

have been accepted for investigation because they were like or related

to issues that were counseled. Specifically, our previous decision

held that allegations (1), (3), and (4), like allegations (2) and (15),

involved appellant's non-selection for vacant employment positions.

In its request for reconsideration, the agency contends our previous

decision involved an erroneous interpretation of law, regulation or

material fact, or a misapplication of established policy. Specifically,

the agency contends that our previous decision wrongly interpreted the

�like or related� doctrine.

ANALYSIS AND FINDINGS

In order to merit the reconsideration of a prior Commission decision, the

requesting party must submit 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. The Commission's scope of review on a request for reconsideration is

narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749

(September 28, 1989). A request to reconsider is not merely a form

of a second appeal. Regensberg v. U.S. Postal Service, EEOC Request

No. 05900850 (September 7, 1990). Instead, it is an opportunity to

submit newly discovered evidence, not previously available; to establish

substantive error in a previous decision; or to explain why the previous

decision will have effects beyond the case at hand. Lyke v. U.S. Postal

Service, EEOC Request No. 05900769 (September 27, 1990).

The Commission finds that the agency's request does meet the regulatory

criteria of 29 C.F.R. �1614.407(c). Specifically, we find that our

previous decision erroneously determined that allegations (1), (3), and

(4) were �like or related� to allegations (2) and (15). Citing Scher

v. United States Postal Service, the agency argues that the Commission

has ruled that in determining if a later allegation is �like or related�

to the original complaint, the central question is whether the later

allegation adds to or clarifies the original complaint and could

have reasonably been expected to grow out of the original complaint

during the investigation. EEOC Request No. 05940702 (May 30, 1995).

Upon reconsidering of our previous decision, we now find that where, as

here, an appellant raises an allegation(s) of non-selection before an EEO

counselor and later raises other non-selections, the later allegations

are not �like or related� to the earlier one(s). Our finding is based

upon the fact that the later allegations do not add to or clarify the

original complaint, nor can they reasonably be expected to grow out of

the original complaint during the investigation. Based on the foregoing,

we find that our previous decision incorrectly applied the �like or

related� to doctrine and, therefore, contained a substantive error.

CONCLUSION

After a review of agency's request for reconsideration, the previous

decision, and the entire record, the Commission finds that the agency's

request does satisfy the criteria of 29 C.F.R. �1614.407(c), and it is

the decision of the Commission to grant the request. Our decision in

EEOC Appeal No. 01983444 hereby REVERSED. The agency's final decision

is AFFIRMED.

STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION

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 State District Court WITHIN NINETY

(90) DAYS from the date that you receive this decision. You should be

aware, however, that courts in some jurisdictions have interpreted the

Civil Right's 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. 5, 1999

______________ __________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1 Only the five allegations that

are relevant to the agency's request for reconsideration are

listed here.