05970523
01-15-1999
Donna R. Washington, Appellant, v. Michael F. DiMario, Public Printer, Government Printing Office, Agency.
Donna R. Washington v. Government Printing Office
05970523
January 15, 1999
Donna R. Washington, )
Appellant, ) Request No. 05970523
) Appeal No. 01964331
v. ) Agency No. 96-10
)
Michael F. DiMario, )
Public Printer, )
Government Printing Office, )
Agency. )
)
DENIAL OF RECONSIDERATION
INTRODUCTION
On February 21, 1997, Donna R. Washington (hereinafter referred to
as appellant) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision
in Washington v. Government Printing Office, EEOC Appeal No. 01964331
(January 23, 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 or 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
set forth herein, appellant's request is denied.
ISSUE PRESENTED
The issue presented is whether appellant's request meets any of the
statutory criteria for reconsideration.
BACKGROUND
The previous decision gave a complete account of the facts at issue in
this case, and the Commission adopts that version of the facts herein.
A summary of the relevant facts and issues follows.
Appellant--the Chief of Counseling and Complaints Processing
Division--filed an EEO complaint alleging race (black), sex (female), and
reprisal discrimination when the agency's Deputy General Counsel refused
to forward two EEO settlement agreements to the agency's EEO Office.
In its final decision (FAD), the agency dismissed appellant's complaint
on the grounds that her contact with an EEO counselor was untimely and,
alternatively, that she had failed to state a claim because she was
not aggrieved. Appellant appealed from the FAD.
Upon review, the previous decision affirmed the FAD. The previous
decision found that appellant suspected discrimination by August 4,
1995, after the Deputy General Counsel notified the EEO Office that
he would not be forwarding two settlement agreements because of the
confidentiality provision contained therein. The previous decision noted
that appellant telephoned the EEO counselor on August 4, 1995 and notified
him of her personal feelings that the Deputy General Counsel's actions
were discriminatory. The previous decision also noted that in an August
11, 1995 memorandum to the EEO Director, appellant again alleged--inter
alia--that the Deputy General Counsel's actions were discriminatory.
Nonetheless, the previous decision found that there was no evidence that
appellant had exhibited an intent to begin the EEO process, see Allen
v. United Postal Service, EEOC Request No. 05950993 (July 8, 1996),
until she sent the EEO Counselor her November 28, 1995 memorandum entitled
"Reprisal Charge against the Deputy General Counsel." In this regard,
the previous decision also noted that in her formal complaint, appellant
stated that she had forwarded the above memorandum on November 29, 1995,
and "[a]t that time, I requested informal counseling" (emphasis added).
Because appellant provided EEO counseling for agency employees, the
previous decision found that she should have known that, to begin the
EEO process, she was required to communicate her intention to do so
rather than merely express her feeling that she was being subjected to
discrimination. For these reasons, and because appellant provided no
basis for extending the time period for contact with an EEO counselor,
the previous decision found that the agency's dismissal of appellant's
complaint for untimeliness was proper.
In her reconsideration request, appellant contends that the previous
decision erred in affirming the FAD.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits 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. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
Appellant contends that she "explicitly expressed" her intent to begin
the EEO process.
The record contains an affidavit from the Management Analyst for Customer
Services, the Acting EEO Counselor. In relevant part, the Acting
Counselor indicated that he had no record of contact with appellant on
August 4, 1995. Although he recalled general conversations with appellant
regarding "what...[the Deputy General Counsel] has done this time," the
Acting Counselor said that he did not recall discussing specifics and that
these conversations were not in "the context of a counseling session."
The Acting Counselor explained that he has known appellant for several
years and that she has had numerous conversations with him that were "not
official in nature." The Acting Counselor said that he had no reason to
believe that appellant's remarks--because they did not concern specific
charges--were anything more than "friendly conversation." Because the
Acting Counselor knew that appellant was a knowledgeable EEO Officer,
he believed that she would be "quite direct in requesting counseling or
filing a complaint," particularly given his "acknowledged inexperience"
as an EEO counselor. The Acting Counselor also said that despite his
inexperience, he nonetheless was sufficiently aware to know "whether
a counseling contact is taking place and, in my estimation, none did."
Further, other than appellant's own bare assertions, there is no evidence
as to whether and when she indicated to the EEO Director an intent to
begin the counseling process. Based our review of the record as a whole,
we find no error in the previous decision's finding that appellant did not
indicate an intent to begin the counseling process until November 1995.
Assuming, arguendo, that appellant's EEO contact was timely, we further
find that the agency properly dismissed appellant's EEO complaint for
failure to state a claim.
To establish standing as an "aggrieved employee" and state a claim under
the regulations, a complainant must allege that she has been injured
in fact. See Hackett v. McGuire Bros., 445 F.2d 447 (3rd Cir. 1971);
Hicks v. Dep't of the Treasury, EEOC Request No. 05950443 (July 25, 1996).
Although the regulations do not define the term "aggrieved employee,"
the Supreme Court has interpreted it to mean an employee who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment and for which there is a remedy. Trafficante v. Metropolitan
Life Ins. Co., 409 U.S. 205 (1972).
Appellant appears to assert that the Deputy's refusal to transmit
the two settlement agreements interfered with her job. That is, as
custodian of complaint files, she cannot attest to the completeness of
the files unless she has all the relevant documents. Because appellant
previously filed an EEO complaint regarding the classification of her
position, she further asserted that his actions could be considered as
"diminishing my responsibility."
Appellant failed to show that she was harmed by the Deputy General
Counsel's actions. That is, there was no evidence to show any adverse
action against appellant or an unsatisfactory performance rating because
she did not have access to the settlement agreements. Further, there
was no evidence to show that the Deputy General Counsel played any role
regarding appellant's reclassification attempts or that diminution of
her duties would have resulted from his actions. Appellant has failed
to show that she had suffered a present harm or loss with respect to a
term, condition or privilege of her employment as a result of the Deputy
General Counsel's actions.
Because we find that appellant's request fails to meet any of the
statutory criteria for reconsideration, we therefore deny the request.
CONCLUSION
After a review of appellant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
appellant's request for reconsideration fails to meet the criteria of
29 C.F.R. �1614.407(c), and the request hereby is DENIED. The decision
in EEOC Appeal No. 01964331 hereby is AFFIRMED.
STATEMENT OF APPELLANT'S RIGHTS
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 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. 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:
JAN 15, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat