Ernestine Lavergne-Kachur,) Appellant,) v.) Lawrence H. Summers,) Secretary,) Department of the Treasury,) Agency.)

Equal Employment Opportunity CommissionNov 4, 1999
05980736 (E.E.O.C. Nov. 4, 1999)

05980736

11-04-1999

Ernestine Lavergne-Kachur,) Appellant,) v.) Lawrence H. Summers,) Secretary,) Department of the Treasury,) Agency.)


Ernestine Lavergne-Kachur,)

Appellant,)

)

v.) Request No. 05980736

) Appeal No. 01975722

Lawrence H. Summers,) Agency No. 97-2150

Secretary,)

Department of the Treasury,)

Agency.)

)

DECISION ON REQUEST FOR RECONSIDERATION

On April 30, 1998, the Department of the Treasury (agency) timely

initiated a request to the Equal Employment Opportunity Commission (EEOC

or Commission) to reconsider the decision in Ernestine Lavergne-Kachur

v. Department of the Treasury, EEOC Appeal No. 01975722 (April

20, 1998). 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

misapplication of established policy, 29 C.F.R. �1614.407(c)(2); or the

previous decision is of such exceptional nature as to have substantial

precedential implications, 29 C.F.R. �1614.407(c)(3).

The facts of this case are set out in full in the previous decision,

which is incorporated by reference herein. Briefly stated, in its June 9,

1997, final agency decision (FAD), the agency dismissed four of the five

issues raised by appellant in her complaint; one (pertaining to use of

leave-sharing hours) on the basis of mootness, and three (two pertaining

to a workload review and one pertaining to placement on leave without pay)

on the basis that appellant had previously filed a grievance on the same

matters in a grievance process which allowed her to raise allegations

of discrimination. The fifth issue (pertaining to a mid-year evaluation)

was accepted for investigation. The previous decision reversed the FAD,

finding that the allegation dismissed for mootness was not moot, and

further finding that the agency had failed to submit any evidence that

appellant, in fact, had the right to raise allegations of discrimination

in the grievance process.

In its request for reconsideration, the agency reiterates its position

that appellant should have raised her allegations of discrimination

in the grievance process, and submits documentation, including a copy

its National Labor Agreement, in support of its argument. The agency

characterizes this evidence as �new,� but fails to explain why it could

not have been submitted while the case was pending on appeal, given that

the documentation predates the filing of the appeal. The agency requests

reconsideration only with regard to the three issues raised during the

grievance process. Appellant did not reply to the agency's request.

The Commission finds that the agency's request meets none of the criteria

for reconsideration, and so is DENIED. However, the Commission exercises

its discretion to reconsider the matter on its own motion.

The Commission's regulations provide, in relevant part, that an agency

shall dismiss a complaint, or portion of a complaint, �[w]here the

complainant has raised the matter in a negotiated grievance procedure

that permits allegations of discrimination....� 29 C.F.R. �1614.107(d).

The record reflects that appellant raised the three dismissed allegations

in a previously filed grievance, and in fact raised the matter of

reasonable accommodation during the grievance process. Accordingly,

the agency properly dismissed the three allegations that were raised in

the grievance process.

Upon review of the agency's request for reconsideration, the previous

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

request does not meet any of the criteria of 29 C.F.R. �1614.407(c).

Accordingly, the agency's request is DENIED. However, having reconsidered

the matter on its own motion, the Commission MODIFIES the decision in

Appeal No. 01975722 to reflect that the final agency decision is affirmed

with regard to the dismissal of Issues 1, 2, and 3 of appellant's formal

EEO complaint. There is no further right of administrative appeal from

the decision of the Commission on this 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 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 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

appellant. If the agency does not comply with the Commission's order,

appellant may petition the Commission for enforcement of the order.

29 C.F.R. �1614.503 (a). 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, 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 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 EIGHTY (180) CALENDARS 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:

Nov. 4, 1999

Date Frances M. Hart

Executive Officer

Executive Secretariat