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