Denise M. Hofmann, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, (Naval Surface Warfare Center), Agency.

Equal Employment Opportunity CommissionOct 28, 1999
05970962 (E.E.O.C. Oct. 28, 1999)

05970962

10-28-1999

Denise M. Hofmann, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, (Naval Surface Warfare Center), Agency.


Denise M. Hofmann, )

Appellant, ) Request No. 05970962

) Appeal No. 01964664

v. ) Agency No. DON-96-65540-005

)

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

(Naval Surface Warfare Center), )

Agency. )

________________________________)

DENIAL OF REQUEST FOR RECONSIDERATION

On July 31, 1997, the Department of the Navy (hereinafter referred

to as the agency) timely initiated a request to the Equal Employment

Opportunity Commission (the Commission) to reconsider the decision in

Denise M. Hofmann v. John H. Dalton, Secretary, Department of the Navy,

Naval Surface Warfare Center, EEOC Appeal No. 01964664 (June 27, 1997),

received on July 2, 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, the agency's

request is denied.

The issue presented is whether the previous decision was correct when

it reversed the agency's dismissal of allegations (1), (3), (5), (6),

(7), (8), (10) and (11) and remanded allegation (4) for processing.

The record reflects that appellant filed a formal EEO complaint on March

14, 1996, alleging discrimination on the basis of her sex (female).

The allegations of appellant's complaint were as follows:

1) she was placed on the allocation excess list over the remaining male

co-workers in the branch. Appellant also maintained that discriminating

methods were used to determine who would be placed on the allocation

excess list;

2) on February 11, 1992, she indicated that she wanted to join the

Enhanced Quality of Life Program project. According to appellant,

she was allowed to go on one visit, but was never included again;

3) she was never assigned as a Life Cycle Manager;

4) the department groomed men for management, but not women with technical

experience;

5) her suggestions were discounted and considered of no value to the

Branch, since she was the only female;

6) her supervisor did not intercede on her behalf concerning the harassing

"E-mail" rebuttals she received within her code on May 8, 1995;

7) sometime during the beginning of January 1995, she received, from

unknown persons, a newspaper advertisement through the inter-office

mail system. The advertisement was for overweight women who were looking

for jobs;

8) she was the only person (and female) out of 15 who was not provided

with a state-of-the-art computer;

9) since she began in February of 1992, she never received formal

equipment training to learn the technical aspects of her job. According

to appellant, she had to insist on training, but no one in the office

had time to train her;

10) as a result of being placed on the allocation excess list (allegation

(1)), in December 1995, the Branch Head removed her from productive job

orders and placed her on overhead job orders; and

11) on January 26, 1996, she was asked by the Branch Head, who had

documents in his hand, where he could find a typewriter.<1>

On May 3, 1996, the agency issued a decision dismissing appellant's

complaint. Specifically, the agency dismissed allegation (1) on the

grounds of mootness, allegations (2), (6), and (9) for untimely EEO

counselor contact and allegations (3), (5), (7), (8), (10), and (11)

for failure to state a claim. The agency did not make a determination

regarding allegation (4) in its decision.

The previous decision, taking note of appellant's contention that she

suffered from depression and stress as a result of being placed on the

allocation excess list, reversed the agency's finding that allegation

(1) was moot. Additionally, after reviewing appellant's complaint,

supplemental documents she submitted to the agency and her statement

on appeal, the previous decision found that appellant was raising a

claim of gender harassment which created a hostile work environment.

Consequently, the previous decision reversed the dismissal of allegations

(3), (5), (6), (7), (8), (10) and (11). The dismissals of allegations

(2) and (9), however, were affirmed. Finally, the previous decision

noted the agency's failure to address allegation (4), and remanded the

allegation for processing.

In its request to reconsider (RTR), the agency, in large part, argued

that the previous decision erred by finding that an allegation cannot be

dismissed as moot if the complainant alleges the existence of compensatory

damages. The agency also maintained that the previous decision erred

in finding that it failed to properly define appellant's complaint as

one alleging a hostile work environment. Finally, the agency argued

that allegation (4) was too vague and broad to investigate; therefore,

the previous decision erred when it remanded the matter for processing.<2>

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)

has been 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. USPS, EEOC Request

No. 05900769 (September 27, 1990).

After a careful review of the record, the Commission finds that

the agency's RTR does not meet the regulatory criteria of 29

C.F.R. �1614.407(c). Specifically, with regard to allegation (1), we note

the agency's contention that appellant's allegation is now moot

because she was removed from the allocation excess list prior to her

final interview. According to the agency, "[t]he practical effect

of the previous decision is that an issue could never be dismissed as

moot pursuant to 29 C.F.R. �1614.107(e) if the complainant alleges the

existence of compensatory damages." The Commission has long held that

where a complainant has requested compensatory damages, the potential

for said damages means that the matter cannot be dismissed as moot until

the agency has at least given the appellant the opportunity to present

evidence supporting her claim for compensatory damages and then either

awards the damages or have shown that the appellant was not entitled

to them.<3> As noted by the previous decision, "[t]he issue cannot be

moot because the second prong of the mootness test, which states that

interim relief or events have completely and irrevocably eradicated the

effects of the alleged violation, has not been satisfied."

With regard to allegations (3), (4), (5), (6), (7), (8), (10) and (11),

we find that the essence of appellant's complaint involves a single

claim of ongoing discrimination, with regard to certain terms and

conditions of her employment, due to her sex. We note in this regard

appellant's claim that she was subjected to "[s]exual discrimination from

my first line supervisor as well as the senior members in my branch."

The Commission, in Drake v. Department of the Air Force, EEOC Request

No. 05970689 (March 29, 1999), 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 allegations

in the complaint. Therefore, since allegations (1), (3), (4)<4>, (5),

(6), (7), (8), (10)<5>, (11) are evidence of appellant's claim that,

on numerous occasions, she was subjected to ongoing harassment based

on her sex, as well as discrimination with respect to training and her

work assignments, we will remand these allegations for processing in

accordance with the Order below.

Although we do not find that the previous decision erred with regard to

its determination that allegations (2) and (9) were properly dismissed on

the grounds of untimely counselor contact, we note that this finding does

not relieve the agency of its responsibility to thoroughly investigate

all the circumstances that may be relevant to appellant's overall

claim of discrimination. See EEOC Management Directive (MD)-110 at 5-4

(October 22, 1992). This means that, to the extent they are probative

of appellant's overall hostile work environment claim, allegations (2)

and (9) must be investigated as background evidence. See Silva v. USPS,

EEOC Request No. 05960115 (June 20, 1996).

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

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

in EEOC Appeal No. 01964664 (June 27, 1997), as MODIFIED, remains the

Commission's final decision. 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 allegations (1), (3), (4), (5), (6),

(7), (8), (10), (11) in accordance with 29 C.F.R. �1614.108. The agency

shall also investigate allegations (2) and (9) as background evidence,

to the extent that such evidence is relevant to appellant's overall claim

that, on numerous occasions, she was subjected to ongoing discrimination

because of her sex.

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 (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 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:

Oct. 28, 1999

Date Frances M. Hart

Executive Officer

1Since there was a typewriter on the secretary's desk, appellant stated

that she interpreted the Branch Head's comments to be a request for her

to type the documents. According to appellant, she questioned whether

male employees would have been asked to perform such a task.

2According to the agency, the allegation should have been remanded in

order to give it an opportunity to decide whether to accept or dismiss.

3See, e.g., Watson v. Department of the Navy, EEOC Request No. 05970452

(January 8, 1999); Jordan v. Department of the Treasury, EEOC Request

No. 05970426 (January 4, 1999); Huhn v. Department of the Treasury,

EEOC Request No. 05940630 (February 16, 1995); Ellicker v. Department

of Agriculture, EEOC Request No. 05931079 (September 22, 1994); Soto

v. Department of Veterans Affairs, EEOC Request No. 05930992 (April 7,

1994); and Salazar v. Department of Justice, EEOC Request No. 05930316

(February 9, 1994).

4In accordance with the discussion above, we are not persuaded by the

agency's argument that allegation (4) should not have been remanded

for processing.

5The agency's dismissal of allegation (10) would have been correct if it

were viewed by itself; however, appellant alleged that she was subjected

to an ongoing pattern of discrimination. In this context, she states

a claim. See Hatchett v. USPS, EEOC Request No. 05950758 (May 16, 1997).