05970706
01-16-2001
Ethel C. Redfearn, Complainant, v. J. Brian Atwood, Administrator, Agency for International Development, Agency.
Ethel C. Redfearn v. Agency for International Development
05970706
01-16-01
.
Ethel C. Redfearn,
Complainant,
v.
J. Brian Atwood,
Administrator,
Agency for International Development,
Agency.
Request No. 05970706
Appeal No. 01962281
Agency No. EOP-94-08
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On April 20, 1997, Ethel C. Redfearn (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Ethel C. Redfearn v. J. Brian Atwood,
Administrator, Agency for International Development, EEOC Appeal
No. 01962281 (March 17, 1997).<1> EEOC regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. � 1614.405(b). The party requesting
reconsideration must submit written argument or evidence which tends
to establish one or more of the following two criteria: the appellate
decision involved a clearly erroneous interpretation of material fact
or law; or the decision will have a substantial impact on the policies,
practices or operations of the agency. Id. For the reasons set forth
herein, complainant's request is denied. The Commission will, however,
reconsider the previous decision on its own motion.
ISSUES PRESENTED
The issues presented herein are:
1) whether the previous decision erred in finding that complainant's
appeal was filed in an untimely manner; and
2) whether the agency properly dismissed complainant's complaint on the
grounds of untimely counselor contact and failure to state a claim.
BACKGROUND
Complainant, on December 16, 1995, received the agency's final decision.
Under normal circumstances, her appeal should have been filed with the
Commission on January 16, 1996.<2> According to the previous decision,
complainant did not file her appeal until February 6, 1996.<3> This
determination was based on the fact the appellate record contained a
Notice of Appeal form (Form 573) that was apparently transmitted by
complainant on February 6, 1996. The previous decision took judicial
notice of the fact that there was a government-wide shutdown during
a portion of December 1995 and January 1996. Also, the offices of the
Federal government, in the Washington, D.C. area, were closed during part
of January 1996 because of inclement weather conditions. The Commission
reopened on January 16, 1996. Although the previous decision recognized
the "unusual circumstances" set forth above, complainant, according to
the decision, failed to present an adequate justification for tolling the
filing period 21 days, i.e., from January 16, 1996 to February 6, 1996.
Consequently, her appeal was dismissed.
In her request to reconsider (RTR), complainant maintained that the
previous decision erred in finding that her appeal was filed on February
6, 1996. According to complainant, she did not return to work until
January 17, 1996, due to an illness. Upon her return, she contacted
agency officials in the agency's EEO Office in order to find out when her
appeal was due. On January 18, 1996, complainant received an "e-mail"
message informing her that she had to contact the Commission's Office
of Federal Operations (OFO). On January 19, 1996, complainant spoke to
an official in OFO. According to complainant, the official granted her
a thirty-day extension in order to file an appeal.<4> After receiving
Form 573 from OFO, complainant submitted her appeal, by facsimile,
that same day, i.e., January 19, 1996.<5> The agency did not respond
to complainant'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 complainant's request does not
meet the regulatory criteria of 29 C.F.R. � 1614.405 (b). Based on the
information that was available at the time the previous decision was
issued, we do not find that the appellate decision involved a clearly
erroneous interpretation of material fact or law.
Having reached the above determination, the Commission, on its own motion,
has decided to reconsider the previous decision. It is therefore the
decision of the Commission to grant the request. The record indicates
that complainant, upon her return to work on January 17, 1996, took
immediate steps to ascertain when her appeal was due. We also find,
based on a review of documentation that was not contained in the appellate
record, that complainant's appeal was initially filed on January 19, not
February 6.<6> Using our discretion, we find that complainant presented
an adequate justification for tolling the filing deadline through January
19.
We must now address complainant's appeal. The record indicates that
on October 1, 1993, complainant and 12 co-workers issued a letter
to the agency that complained about various alleged discriminatory
practices. Therefore, October 1, 1993, shall be deemed the date of
EEO counselor contact. On February 16, 1994, complainant filed an
individual discrimination complaint. According to complainant, she
was discriminated against because of her age (63), sex (female), race
(Black), color (black) and previous EEO activity when:
1) in 1988, she was denied a promotion to a GS-7/9 career ladder
secretarial position (claim (1)); and
2) she was denied cash awards and training opportunities, and, on
November 2, 1993,<7> her supervisor threatened to have her investigated
for falsifying time and attendance reports (claim (2)).
On March 1, 1994, a class action discrimination complaint was filed.
Complainant was listed as a member of the purported class. Consequently,
the processing of her individual complaint was held in abeyance pending
a certification determination on the class complaint. On July 26,
1995, the agency denied certification of the class, after receiving
the recommendation of an EEOC Administrative Judge.<8> Complainant
was notified of the dismissal of the class complaint in October 1995.
Subsequently, the agency requested additional information concerning
claim (2) of her individual complaint. On December 8, 1995, the agency
issued a final decision that dismissed claim (1) on the grounds that
complainant contacted an EEO counselor in an untimely manner. Claim (2)
was dismissed on the grounds that complainant failed to state a claim.
According to the agency, complainant, in her response to its inquiry,
failed to state a claim because she did not provide sufficient detail
regarding the various discriminatory events. The agency stated that
"[c]omplaints lacking specificity cannot be accepted for investigation."
According to complainant, she was denied performance based cash awards
�every year.� In her response to the agency, complainant cited her
supervisor's alleged comment, in November 1988, that �as long as she
worked for him, [she] will never get any promotions or cash awards.� She
also cited several exchanges with her supervisor in 1989, 1991, 1992,
and 1993, which she maintained were related to her failure to receive
cash awards. These exchanges were not specific denials of requests
for cash awards, but were matters that complainant felt influenced
her performance rating and therefore affected her ability to receive
a cash award. With respect to the denial of her requests for training
opportunities, complainant only provided two examples. She indicated
that in 1988, her request to attend a Basic Administrative Course was
denied and that she was denied an opportunity to attend WANG training
in 1993. Neither complainant nor the agency provided the exact date.
According to complainant, her supervisor told her that "[i]t was not
necessary for [her] to have training because the front office must be
covered at all times and I needed to be there."
Finally, complainant alleged that she was discriminated against on
November 2, 1993, when her supervisor threatened to have her investigated
for falsifying time and attendance reports. According to complainant,
her supervisor threatened to inform the agency's Inspector General's
(IG) office. After speaking with A-1, an executive management official,
the supervisor was told that he should not have placed the blame on
complainant because she was only recording information that was provided
by other people. According to complainant, she was subsequently required
to give her supervisor daily time and attendance reports.
Claim 1
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in � 1614.105, � 1614.106 and
� 1614.204(c), unless the agency extends the time limits in accordance
with � 1614.604(c).
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of a
personnel action, within 45 days of the effective date of the action.<9>
EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the complainant can establish
that (s)he was not aware of the time limit, that (s)he did not know
and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence (s)he was
prevented by circumstances beyond his or her control from contacting
the EEO counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
Based on a careful review of the record, we find that Claim (1) was
raised in an untimely manner. Since the nonselection occurred in 1988,
complainant's October 1, 1993 counselor contact was well beyond the time
limitation period. The dismissal of Claim (1) is AFFIRMED.
Claim 2
The agency dismissed Claim 2 on the grounds that it failed to state a
claim because it lacked specificity. We do not find that this is a valid
reason for dismissal here. EEOC Regulation 29 C.F.R. � 1614.106(c)
provides that a complaint must "describe generally the action(s) or
practice(s) that form the basis of the complaint." With respect to each
issue set forth in Claim 2, complainant identified the specific agency
actions that she believes were discriminatory, who took those actions,
and generally when the actions were taken. Consequently, we find that
complainant has provided sufficient clarification, and therefore, Claim
2 should not have been dismissed for failure to state a claim.
Moreover, we note complainant's contention that her supervisor's
behavior, in general, �harassed, retaliated, and disparately treated her
in various manners.� For example, complainant, as previously noted,
alleged that her supervisor threatened her with an IG investigation.
This incident constitutes evidence in support of her claim of harassment.
Therefore, on remand, the agency should not exam this and the other
matters complainant raised individually, or in a piecemeal fashion.
A fair reading of the record as a whole reveals that complainant is
alleging a claim of ongoing harassment which resulted in a hostile work
environment. See Drake v. Department of the Air Force, EEOC Request
No. 05970689 (March 29, 1999); Meaney v. Department of the Treasury,
EEOC Request No. 05940169 (November 3, 1994). Accordingly, we REVERSE
the agency's determination with respect to Claim 2 and REMAND this matter
in accordance with the Order below.
CONCLUSION
After a review of complainant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that complainant's
request does not meet the criterion of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to DENY the request. The Commission
decided, however, to reconsider this matter on its own motion.
The decision in EEOC Appeal No. 01961176 (October 31, 1996) is REVERSED.
The agency's final decision is MODIFIED, as indicated above. There is no
further right of administrative appeal from that portion of our decision
pertaining to the timeliness of complainant's appeal of the agency's
final decision.
ORDER (E0900)
The agency is ordered to process Claim 2 in accordance with 29 C.F.R. �
1614.108. The agency shall acknowledge to the complainant that it
has received Claim 2 within thirty (30) calendar days of the date this
decision becomes final. The agency shall issue to complainant a copy
of the investigative file and also shall notify complainant 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 the complainant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION
RECONSIDERATION (M0900)
With regard to that portion of our decision pertaining to the agency's
dismissal of Claims (1) and (2), the Commission may, in its discretion,
reconsider the decision in this case if the complainant or the agency
submits a written request containing arguments or evidence which tend
to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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 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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
_____01-16-01_________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________________________
Date
______________________________
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 29 C.F.R. Part 1614 in deciding the present
appeal. The regulations, as amended, may also be found at the Commission's
website at www.eeoc.gov.
2The record indicates that the 30th-day, January 15, 1996, was a Federal
holiday.
3Complainant's appeal was filed by facsimile.
4The official, however, wrote in a memorandum dated January 19, 1995 that
"[I] called [complainant] and explained that I can't give an extension
for filing an appeal, and she needs to submit a Form 573 to us ASAP.
She said she would."
5Complainant's January 19, 1996 transmission, the memorandum of the OFO
official and other supporting documents were not part of the appellate
record that was relied upon by the previous decision.
6Complainant never offered an explanation concerning her resubmission
of Form 573 on February 6, 1996.
7The agency's final decision erroneously stated that this occurred in
1992.
8There is no record of an appeal of the final agency decision denying
certification.
9We note, however, that Claim (1) arose before the implementation of
EEOC Regulation 29 C.F.R. Part 1614 on October 1, 1992; therefore,
appellant was required to initiate contact with a counselor within 30
days of the occurrence of the above events.