05970689
03-29-1999
DeAnn Drake, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
DeAnn Drake v. Department of the Air Force
05970689
March 29, 1999
DeAnn Drake, )
Appellant, )
) Request No. 05970689
v. ) Appeal No. 01961312
) Agency No. HPF-95-310
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
__________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
On April 9, 1997, DeAnn Drake (hereinafter referred to as the appellant)
timely initiated a request to the Equal Employment Opportunity
Commission (the Commission) to reconsider the decision in DeAnn
Drake v. Sheila E. Widnall, Secretary, Department of the Air Force,
EEOC Appeal No. 01961312 (March 7, 1997), received on March 14, 1997.
EEOC regulations provide that the Commissioners may, in their 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); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons that follow, appellant's
request is denied; however, the Commission has decided to reconsider
the previous decision on its own motion.
Because of the narrow issue to be addressed herein, we will not restate
the entire narrative set forth in the previous decision. The record
indicates that the agency dismissed 12 of the 16 allegations contained in
appellant's complaint. According to the agency, appellant, who contacted
an EEO counselor on September 18, 1995, sought counseling in an untimely
manner with respect to the dismissed allegations. On appeal, appellant
argued that her EEO contact should have been deemed timely because the
agency's actions constituted a continuing violation. She also indicated
that she did not seek EEO counseling earlier because she feared further
harassment by agency officials.
The previous decision, finding that appellant was aware of or suspected
possible discrimination as early as March 1995, rejected her claim
of a continuing violation. The previous decision further found that
appellant had not submitted an adequate justification for extending the
45-day time limitation period.
In her request to reconsider (RTR), appellant reiterated her contention
that the dismissed allegations constituted a continuing violation.
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). An RTR is not merely a form of a second appeal.
Regensberg v. USPS, 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. United States Postal Service, EEOC
Request No. 05900769 (September 27, 1990).
After a careful review of the record, the Commission finds
that appellant's RTR does not meet the regulatory criteria of 29
C.F.R. �1614.407(c). Notwithstanding the above, the Commission has
decided to reconsider this matter on its own motion. In essence
appellant's complaint involves a single claim of ongoing harassment.
The Commission has previously held that an agency should not ignore the
"pattern aspect" of a complainant's allegations and define the issues
in a piecemeal manner where an analogous theme unites the matters
complained of. Meaney v. Department of the Treasury, EEOC Request
No. 05940169 (November 3, 1994). The record indicates that the agency
accepted appellant's allegations that she was assigned GS-12 duties
without proper compensation from October 1990 to the present; that on
August 14, 1995, she was given one day's notice for a briefing; that she
resigned because of medical problems caused by management's continuous
harassment on September 5, 1995; and that her supervisor accused her of
writing a letter to the Branch Chief for a former employee. We find that
the 12 dismissed allegations further illustrate appellant's contention
that on numerous occasions she was subjected to harassment by management
with regard to her working conditions. Consequently, the agency should
have accepted the dismissed allegations along with those it accepted
for investigation. We therefore remand the 12 dismissed allegations
for processing in accordance with the Order below.
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request fails to satisfy the criteria of 29 C.F.R. �1614.407(c), and it
is the decision of the Commission to deny the request. The Commission,
however, has decided to reconsider the decision in EEOC Appeal
No. 01961312 (March 7, 1997) on its own motion. The decision and the
agency's final decision, dismissing 12 of appellant's allegations, are
hereby REVERSED. There is no further right of administrative appeal
from a decision of the Commission on a request for reconsideration.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such 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 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 AND EIGHTY (180) CALENDAR
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:
March 29, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat