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.