05970072
01-15-1999
Elijah Burton, Jr., Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Elijah Burton, Jr. v. Department of Veterans Affairs
05970072
January 15, 1999
Elijah Burton, Jr., )
Appellant, )
) Request No. 05970072
v. ) Appeal No. 01960520
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On October 19, 1996, Elijah Burton, Jr. (hereinafter referred to as
appellant), timely initiated a request to the Equal Employment Opportunity
Commission (the Commission) to reconsider the decision in Elijah Burton,
Jr. v. Jesse Brown, Secretary, Department of Veterans Affairs, EEOC Appeal
No. 01960520 (September 24, 1996). EEOC regulations provide that the
Commissioners may, in their discretion, reconsider any previous 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 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, the
appellant's request is denied.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed
the agency's final decision dismissing appellant's complaint for failure
to state a claim.
BACKGROUND
Appellant filed complaints on June 20, 1995 (Complaint 1), and on May 27,
1995 (Complaint 2). In its final agency decision (FAD) dated September
27, 1995, the agency accepted appellant's allegations in Complaint 1
and dismissed his allegations in Complaint 2. On appeal, the previous
decision affirmed the agency's FAD.
With regard to Complaint 1, appellant sought EEO counseling on March
20, 1995, and alleged discrimination based on reprisal with regard to
harassment (10 events), working conditions (five events), and his 1995
performance appraisal. The agency accepted all allegations in Complaint
1, and accepted the harassment and working conditions allegations as
continuing violations. In its FAD, it informed appellant that it would
investigate these issues. Appellant had previously engaged in EEO
activity in October 1994, when he alleged discrimination based on race
(black).
When appellant received the EEO counselor's (Counselor 1) report for
Complaint 1, he initiated EEO counseling with a second EEO counselor
(Counselor 2), complaining about three statements in Counselor 1's
report. In Complaint 2, appellant objected that:
a. Counselor 1 noted that appellant had handwritten notes regarding his
claims of harassment;
b. a management official stated that co-workers do not isolate appellant;
and
c. a management official stated that co-workers may have avoided appellant
because he made racist and derogatory remarks about them.
In its FAD, the agency dismissed these allegations because Counselor 1
had amended her report, in part, and the allegations were moot and for
other reasons stated in the FAD.<1>
In his request for reconsideration (RTR), appellant argues the merits
of his claims and attaches numerous documents. He states that he has
been harassed by management for several years and that this harassment
continued even after he changed jobs. He seeks $2 million.<2> The
agency did not file comments in response to appellant's RTR.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence that tends to establish at least one of the criteria of 29
C.F.R. �1614.407(c). Having reviewed the record and submissions of the
parties, we find that appellant's request fails to meet the criteria of
29 C.F.R. �1614.407(c).
When a complainant files a formal complaint, the counselor is obliged
to report "concerning the issues discussed and actions taken during
counseling." 29 C.F.R. �1614.105(c). The Commission's regulations
require EEO counselors to "conduct counseling activities in accordance
with instructions contained in Commission Management Directives."
29 C.F.R. �1614.105(c); see, generally, EEOC Management Directive 110
(October 22, 1992) (MD-110), Page 2-24. The counselor's report is
intended to be a report of the counselor's record of what happened during
counseling. Ibid. We note that one purpose of the counseling report is
to insure that a complainant has been counseled on all allegations made
in the formal complaint. See 29 C.F.R. �1614.107(b). Although there
is no provision for comments from a complainant, s/he may offer written
comments to be included either in the counselor's report or made part
of any subsequent investigation.
Here, we note first that at least some of Counselor 1's report was
amended following appellant's concerns by the removal of Item (a), above.
With regard to the other items, we do not find that such comments were
improperly included in the counselor's report for Complaint 1.
For the above reasons, the Commission finds that appellant's request does
not meet the regulatory criteria of 29 C.F.R. �1614.407(c). Accordingly,
the Commission denies appellant's request to reconsider the previous
decision.
CONCLUSION
After a review of the appellant's request for reconsideration,
the previous decision, and the entire record, the Commission finds
that the appellant's request fails to meet any of the criteria of 29
C.F.R. �1614.407(c). It is therefore the decision of the Commission to
deny the appellant's request. The decision in EEOC Appeal No. 01960520
(September 24, 1996) remains the Commission's final decision. There is
no further right of administrative appeal on a decision of the Commission
on a Request for Reconsideration.
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 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
1We note that the FAD is not clear as to the specific reasons for the
dismissal of each issue in Complaint 2. Nevertheless, as stated below,
we find that they were properly dismissed.
2Based on appellant's RTR submission, it is unclear whether he understands
that the agency has accepted his complaints of harassment and that his
allegations in Complaint 1 will be investigated.