05971113
08-01-2000
Edwin M. Silva, Complainant, v. Norman E. D' Amours, Chairman, National Credit Union Administration, Agency.
Edwin M. Silva v. National Credit Union Administration
05971113
August 1, 2000
Edwin M. Silva, )
Complainant, )
) Request No. 05971113
v. ) Appeal No. 01960852
) Agency No. NCUA 9407
)
Norman E. D' Amours, )
Chairman, )
National Credit Union )
Administration, )
Agency. )
_______________________________)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On September 25, 1997, the National Credit Union Administration (the
agency) timely initiated a request to the Equal Employment Opportunity
Commission (the Commission) to reconsider the decision in Edwin M. Silva
v. Norman E. D'Amours, Chairman, National Credit Union Administration,
EEOC Appeal No. 01960852 (August 26, 1997).<1> In 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.405(b)), the regulations provide that the Commissioners may,
in their discretion, reconsider any previous decision where the party
demonstrates that: (1) the previous decision involved a clearly erroneous
interpretation of material fact or law; or (2) the decision will have a
substantial impact on the policies, practices or operation of the agency.
29 C.F.R. � 1614.405(b)(1) and (2). The agency's request is denied,
but for the reasons stated below, the Commission, on its own motion,
will reconsider the previous decision.
ISSUES PRESENTED
The issues presented are: (1) whether the agency's request
for reconsideration meets the criteria set forth at 29 C.F.R. �
1614.405(b); (2) whether the previous decision erred when it reversed
the agency's dismissal of claim (a) and vacated the agency's finding
of no discrimination regarding claims (b) and (c); and (3) whether the
administrative judge properly granted summary judgment in this case.
BACKGROUND
On February 8, 1994, complainant sought EEO counseling and thereafter
filed a formal complaint claiming that he was discriminated against on the
basis of his mental disability (Attention Deficit Disorder) when: (a) on
December 3, 1993, he received a "Minimally Successful" performance rating
for the fiscal year ending September 30, 1993; (b) the agency did not
promptly grant his requests for accommodation until June 8, 1993; and (c)
the agency monitored his work too closely.<2> After an investigation by
the agency, complainant requested a hearing before an EEOC Administrative
Judge (AJ). Subsequently, the AJ, after determining that there were no
material issues of fact in dispute, issued a recommended decision (RD)
without a hearing. The AJ recommended that claim (a) be dismissed on the
grounds that the complainant sought EEO counseling in an untimely manner.
Furthermore, the AJ found no discrimination regarding claims (b) and (c).
The agency issued a final decision that adopted, without modification,
the AJ's RD.
The previous decision, finding that claims (b) and (c) were "inextricably
intertwined" with claim (a), reversed the dismissal of claim (a).
Specifically, the previous decision found that all three claims
constituted a continuing violation; therefore, claim (a) should have been
deemed timely. With regard to claims (b) and (c), the previous decision
noted that the agency failed to submit a copy of its investigative file.
Although both the agency and the AJ referred to the investigative file,
the previous decision found that a determination on the merits of claims
(b) and (c) was not possible without the file itself. Consequently, the
agency's finding of no discrimination was vacated. Thereafter, claims (a),
(b) and (c) were remanded for further processing.
In its request to reconsider (RTR), the agency argued, in pertinent
part, that the previous decision erred. Specifically, the agency
maintained that the previous decision erred in finding that it had not
submitted a copy of the investigative file. According to the agency,
the investigative file, consisting of three bound volumes in a black
cover, was submitted to the Commission. In support of its position,
the agency submitted copies of certified mail return receipts, a cover
letter outlining the items that were being submitted to the Commission,
and the Agency Checklist form that accompanied its submission.<3>
The agency also argued that the previous decision erred by reversing its
dismissal of claim (a). According to the agency, the previous decision
misapplied the continuing violation theory. Because claim (a) was the
most recent incident, the agency argued that the continuing violation
theory was not applicable because the complainant did not seek EEO
counseling during the 45-day time limitation period.<4> The previous
decision, according to the agency, erroneously focused on claims (b) and
(c), and not on claim (a) in order to determine whether a continuing
violation existed. Finally, the agency argued that complainant, who
was familiar with the EEO process, had failed to provide an adequate
justification for extending the time limitation period.
Complainant, without addressing the matters raised by the agency or the
Commission's criteria for reconsideration, opposed the agency's RTR.
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. �
1614.405(b) 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). A reconsideration
request is not merely a form of a second appeal. Regensberg v. USPS,
EEOC Request No. 05900850 (September 7, 1990). After a careful review
of the record, the Commission finds that the agency's request does not
meet the regulatory criteria of 29 C.F.R. � 1614.405.
At the outset, we find that the previous decision did not err with
respect to its determination that the agency failed to submit a copy
of its investigative file to the Commission. The preponderance of the
evidence indicates that the agency did not submit the investigative file
on appeal.<5> Notwithstanding this fact, the Commission was subsequently
able to obtain a copy of the file from the agency.
We also find that the previous decision did not err when it reversed the
agency's dismissal of claim (a). The essence of complainant's complaint
involves a single claim of ongoing discrimination, with regard to certain
terms and conditions of his employment, based on his disability. We agree
with the previous decision's determination that claims (a), (b) and (c)
are inextricably intertwined. The agency, however, erred by framing
the issues of complainant's complaint such that it fragmented the claim
and characterized each allegation as a separate and distinct issue.
The Commission has held that when confronted with claims involving
multiple allegations, an agency should not ignore the "pattern aspect"
of a complainant's claim and define the issues in a piecemeal manner
where, as here, an underlying theme unites the matters complained of.
Drake v. Department of the Air Force, EEOC Request No. 05970689 (March
29, 1999). Therefore, we find that the previous decision correctly
determined that allegation (a) was improperly dismissed by the agency.
We also note that, contrary to the agency's contention otherwise,
complainant's testimony indicates that the close monitoring of his work
(claim (c)) continued until March 1994; therefore, it was the most recent
issue raised by complainant, not claim (a). Given that such monitoring
continued into the 45 day time period prior to complainant's February 8,
1994 contact with the EEO counselor, we find that claim (c) was timely
raised. Because of the interrelatedness of claim (c) with claims (a)
and (b), we find that the continuing violation theory is applicable.
Having determined the above, the Commission, on its own motion, has
decided to reconsider the previous decision in order to modify its
analysis with respect to why it was correct to vacate the final agency
decision regarding claims (b) and (c).
Complainant is employed as an auditor, CU-11, in the agency's Region VI
in Concord, California. In March 1992, he was diagnosed with Attention
Deficit Disorder (ADD). He started taking medication for the condition
in May 1992. On June 2, 1992, his attorney informed the agency about his
impairment and requested unspecified accommodations. The agency, on June
24, 1992, requested medical documentation from complainant's doctor and
specific information about his accommodations. Complainant's clinical
psychologist completed the agency's request for medical information
form and indicated that "with psychopharmacological treatment, there are
no limitations at this time." He also indicated that "[complainant]
has no limitations or restrictions as long as he is treated with
medication." (ROI at Exhibit 5B-16).
On August 3, 1992, complainant sent a request to the Regional
Director for two accommodations: 1) additional matrix time to
complete examinations;<6> and (2) additional training to enhance his
performance. On September 16, 1992, he reiterated these requests. On
September 28, 1992, the Supervisory Examiner responded to complainant's
request and stated that more information was needed. Complainant was asked
to have his physician provide an official medical report. On October 19,
1992, complainant responded by providing the names of his physician and
clinical psychologist and asked that management contact them. On January
25, 1993, complainant wrote a follow-up letter to the Regional Director
and requested that he be given an additional ten percent matrix hours,
more training, and additional courses as a reasonable accommodation. On
February 11, 1993, complainant was informed that his psychologist had
failed to submit the medical report that management had requested. The
Regional Director also stated that since the medical information that
was submitted indicated complainant had no limitations, as long as he
was treated with medication, there was no need for any accommodations.
On March 12, 1993, complainant sent the Regional Director a memorandum
reiterating his request for accommodation. This request was accompanied by
a March 2, 1993 letter from his psychologist. In the letter, complainant's
psychologist indicated that "difficulty with timed tasks is quite common
with attention deficit disordered individuals, independent of medication
treatment." (ROI at Exhibit 5B-7). The psychologist also indicated that:
[i]n all cases there is usually a speed of information processing
deficit that effects [sic] written tasks and reading tasks, where the
diagnosed ... individual needs more time to demonstrate mastery. This same
intervention would apply to the employment arena of these individuals,
and it is recommended that this clinical factor be considered in
[complainant's] work environment.
Id. On April 7, 1993, the Regional Director wrote complainant and
informed him that management was reviewing his request. On June 8,
1993, complainant was informed that his accommodation requests were
being granted.
With regard to claim (c), complainant maintained that he was discriminated
against because of his disability when his work was "too closely
monitored." Specifically, complainant indicated that:
his work performance was being reviewed by [my] colleagues and a monthly
progress report was sent to . . . [the] Regional Director. The nature
of the job [is] stressful enough without having my work performance
evaluated by my peers. This was very stressful and there is no doubt
in my mind that this affected my work performance and exacerbated my
medical condition. The other examiners in my group were not subjected
to this type of a review. All of my reports were being reviewed.
(ROI at Exhibit 5). His supervisor testified that he did provide the
regional office with a monthly progress report concerning complainant
because it was his understanding that this was done, on a regional
basis, for all employees who were rated "no better than minimally
meets standards." Because complainant had also received a "Minimally
Successful" rating for fiscal year 1992, his work was already being
closely monitored during the period at issue. According to the
supervisor, he was the only person supervising complainant's work.
He also maintained that �the examination appraisals and annual appraisals
were the only written evaluation of his work and they were completed by
me based on my evaluation alone.�
With respect to claim (b), the AJ found that complainant failed to
show that the agency did not reasonably accommodate him. Prior to
March 12, 1993, the agency, according to the AJ, had virtually no
medical information which would indicate that complainant needed a
reasonable accommodation. The AJ took note of the documentation from
complainant's psychologist indicating that he had no limitations when he
took his medication. According to the AJ, once management received the
psychologist's March 2, 1993 letter, the agency "evaluated and ultimately
approved complainant's requested accommodations." The AJ took note of
complainant's supervisor's testimony that he evaluated complainant's
work as if he had been provided the ten percent additional matrix time
for the entire year.
With respect to claim (c), the AJ found that complainant "presented no
evidence whatsoever that there are similarly situated employees with
'Minimally Successful' ratings who were treated differently." Although
complainant claimed that the monthly monitoring worsened his medical
condition, the AJ found that he presented no objective medical evidence
to indicate that an elimination of the monthly monitoring would have been
required as a reasonable accommodation or that he ever made a request
to that effect.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. This regulation is patterned after the summary judgment procedure
set forth in Rule 56 of the Federal Rules of Civil Procedure. The United
States Supreme Court has stated that summary judgment is appropriate
where the trier of fact determines that, given applicable substantive
law, no genuine issue of material fact exists. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the
evidence is such that a reasonable fact-finder could find in favor of the
non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st
Cir. 1988). In the context of an administrative proceeding under Title
VII, summary judgment is appropriate if, after adequate investigation,
complainant has failed to establish the essential elements of his or
her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173
(3d Cir. 1988). In determining whether to grant summary judgment,
the trier of fact's function is not to weigh the evidence and render a
determination as to the truth of the matter, but only to determine whether
there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.
Our review of a case where summary judgment has been granted under 29
C.F.R. � 1614.109(g) is de novo. In that regard, we conclude that the
AJ erred in granting summary judgment on this record because there are
several questions of fact to be resolved.
According to the AJ, complainant was unable to show that the agency
failed in its duty to reasonably accommodate him. The AJ, however, only
addressed one of complainant's requested accommodations, i.e., the ten
percent additional matrix time. The AJ did not discuss complainant's
request for more training and additional courses as a reasonable
accommodation. According to complainant's supervisor, two additional
courses were approved as part of complainant's Individual Development
Plan for fiscal year 1993, and that he insured complainant was provided
greater exposure to the Principal Examiners by participating in team jobs.
Complainant testified, however, that one of the courses he was provided
took place in 1994, which was after his performance appraisal had already
been received.<7> Therefore, we find that there is a dispute with respect
to whether the agency implemented its June 8, 1993 decision, to approve
complaint's accommodation requests, in such a manner that it could have
affected his performance rating for the evaluation period.<8>
Furthermore, with respect to claim (c), the AJ only addressed
complainant's concerns about the monthly progress reports that his
supervisor submitted to the Regional Director each month. The AJ,
however, did not address complainant's contention that his work was also
being evaluated and monitored by his peers. According to complainant's
supervisor, he was the only one supervising complainant's work. He also
maintained that �the examination appraisals and annual appraisals were
the only written evaluation of his work and they were completed by me
based on my evaluation alone,� but the record contains several examples of
memoranda addressed to the supervisor by other examiners. These memoranda
are clearly evaluations of complainant's work performance and are dated
July through October 1993. According to complainant, the other examiners
in his group were not subjected to this type of review. Therefore,
we find that there is a dispute with respect to whether complainant was
being treated differently than others outside of his protected group.
After a careful review of the record, we find that the AJ erred in
granting summary judgment and that there are questions of fact to be
resolved at a hearing. Accordingly, we find that the agency's decision
regarding claims (b) and (c) were properly vacated. These claims,
along with claim (a), should be remanded to the appropriate hearings
unit to schedule a full evidentiary hearing.
CONCLUSION
After a review of the agency's request to reconsider, complainant's
response, the previous decision, and the entire record, the Commission
finds that the agency's request fails to meet the criteria of 29
C.F.R. � 1614.405, and it is the decision of the Commission to deny the
request. The Commission, however, has decided to reconsider the previous
decision on its own motion. The decision in EEOC Appeal No. 01960852
(August 26, 1997), as MODIFIED herein, remains the Commission's final
decision. The agency will comply with the Order below. There is no
further right of administrative appeal from a decision of the Commission
on a request to reconsider.
ORDER
Claims (a), (b), and (c) are remanded to the EEOC's San Francisco District
Office for scheduling of a hearing in an expeditious manner. The agency
is directed to submit a copy of the complaint file to the Hearings Unit
of the San Francisco District Office within fifteen (15) calendar days of
the date this decision becomes final. The agency shall provide written
notification to the Compliance Officer at the address set forth below
that the complaint file has been transmitted to the Hearings Unit.
Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant 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. �� 1614.407
and 1614.408. 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 complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (Z1199)
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:
_08-01-00________ _________________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ ________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2According to complainant, the monitoring of his work began in June 1992
and continued until March 1994.
3The Agency Checklist is a document provided to an agency by the Office
of Federal Operations. The agency is asked to designate the documents,
in the complaint file, that are being submitted to the Commission in order
to ensure that items are properly associated with the correct case file.
4When a continuing violation is established, the normal time limit for
filing a formal EEO complaint is suspended. Rowan v. Department of
Transportation, EEOC Request No. 05940661 (February 24, 1995). If at
least one of the acts complained of falls within the limitations period,
a complaint filed at any time within this period is timely filed with
respect to all acts which are part of the continuing violation. Id.
5We note in this regard that, in its cover letter and checklist, the
agency never indicated that the investigative file was one of the items
that was being submitted to the Commission.
6Each Credit Union Examiner is required to complete an examination of
a Credit Union within a pre-determined number of hours, identified as
�matrix hours.�
7With respect to the other course, complainant testified that it was a
stress management class that was offered to all examiners that request it.
We note, however, that the record does not indicate when this course
was provided to complainant.
8We note in this regard that the primary criticism of complainant's work
performance by his supervisor concerned his analysis and his conclusions,
not his timeliness. Consequently, we find it reasonable to conclude
that the training aspects of his accommodation request may have been
more important than the additional ten percent of matrix time that the
AJ focused on.