05971094
11-04-1999
Igor Brodetski, Appellant, v. Joseph D. Duffey, Director, United States Information Agency, Agency.
Igor Brodetski v. United States Information Agency
05971094
November 4, 1999
Igor Brodetski, )
Appellant, )
) Request No. 05971094
v. ) Appeal No. 01961128
) Agency No. OCR-95-60<1>
)
Joseph D. Duffey, )
Director, )
United States Information )
Agency, )
Agency. )
________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On September 19, 1997, Igor Brodetski (the appellant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission) to
reconsider the decision in Igor Brodetski v. Joseph D. Duffey, Director,
United States Information Agency, EEOC Appeal No. 01961128 (July 31,
1997), received by appellant on September 10, 1997. 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 a 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
that follow, appellant's request is DENIED.
ISSUE
The issue presented is whether the appellant's request for reconsideration
satisfied the requirements of 29 C.F.R. �1614.407(c).
BACKGROUND
The record indicates that appellant, who is employed by the Voice of
America, filed seven discrimination complaints against the agency on
August 16 and 24, 1995. The agency consolidated all seven complaints
for processing. On October 31, 1995, the agency issued a final decision
that defined appellant's complaint as: whether he was discriminated
against on the basis of reprisal (previous EEO activity) and subjected
to harassment when:
(1). On March 7, 1995, he received a response to his memoranda (series
of memoranda written between January 8 - March 1, 1995, to management
about his being relieved of duty, given inadequate work assignments
and the work performance of his co-workers) from the Division Chief,
which he determined to be inadequate.
(2). On May 17, 1995, he was informed that he would not be compensated for
time spent in court on May 8-9, 1995, which were his official days off.
(3). On May 13, 1995, he informed his supervisors of a mistake by a
co-worker, and he believed no action was taken against the co-worker.
While in 1988, he read correctly the written mistake of another co-worker,
and, as a result, his rating was lowered.
(4). On May 13, 1995, he was asked to read the newscast for another
co-worker, a task for which he was not given proper credit and it was
not reflected on the schedule.
(5). On April 3, 1995, he was given a memorandum that pointed out mistakes
that he had made; and his written requests of April 8 and May 24, 1995,
asking that the mistakes be made available to him were not responded to.
(6). On July 22, 1995, he sent a memorandum to his supervisors reporting
that a co-worker misread a phrase during a newscast. No action was taken
against the co-worker for the mistake, and management purposely showed
the co-worker the memorandum in order to cause a conflict.
(7). On August 11, 1995, a tape "voiced" by him and a co-worker was
destroyed by a Team Leader.
The agency dismissed all seven of appellants allegations. Allegation (1)
was dismissed on the grounds that appellant, who initially contacted
the EEO office by telephone on May 31, 1995, sought EEO counseling
in an untimely manner. Allegations (2), (3), and (6) were dismissed
on the grounds that appellant failed to state a claim. We also note
that allegation (1) was also dismissed for this reason. Finally,
allegations (4), (5) and (7) were dismissed on the grounds that they
were now moot. The previous decision affirmed the dismissal of the seven
allegations.
In his request to reconsider (RTR), appellant argued that: a) there
was no examination of his case; b) he was not given a hearing that
he was entitled to by law; c) he was not allowed to present evidence
in its entirety because the agency "sabotage[d]" the processing of his
complaints; d) he was denied the opportunity to go through the discovery
process; e) new evidence existed regarding agency mismanagement; and f)
the agency, with the "connivance" of the Commission, consolidated his
complaints to such an extent that it became impossible for him to conduct
a defense and present his case.
The agency did not respond to appellant's RTR.
ANALYSIS AND FINDINGS
Under the Commission regulations, reconsideration is available
where a party demonstrates: the existence of new, material evidence,
not previously available, under 29 C.F.R. �1614.407(c)(1); legal,
factual, or policy error in the previous decision, under 29
C.F.R. �1614.407(c)(2); or the exceptional, precedential nature of
the case, under 29 C.F.R. �1614.407(c)(3). Appellant did not cite to
29 C.F.R. �1614.407(c). He did not submit any new, material evidence,
unavailable at the time the previous decision was issued, as is required
by 29 C.F.R. �1614.407(c)(1). He did not offer any convincing argument
or evidence relating to the exceptional nature of his case, pursuant to
29 C.F.R. �1614.407(c)(3). Finally, appellant did not present argument
or evidence under 29 C.F.R. �1614.407(c)(2) showing that the previous
decision erred. The Commission has frequently held that a party's
mere articulation of the language "request to reconsider", without
substantiating evidence or argument demonstrating one or more of the
criteria set forth in 29 C.F.R. �1614.407(c) is insufficient to support
reconsideration. Saunders v. Department of the Army, EEOC Request
No. 05950073 (March 21, 1996).
Because appellant's seven allegations were dismissed on procedural
grounds, pursuant to 29 C.F.R. �1614.107, he is not entitled to an
investigation, a hearing or discovery. Furthermore, 29 C.F.R. �1614.606
allows an agency to consolidate two or more complaints from the same
complainant for joint processing, after appropriate notification to the
parties. Appellant does not contend, nor does the record indicate that he
was not properly notified that his seven complaints would be consolidated.
He also failed to explain how his ability to conduct a defense or present
his case was adversely affected by the consolidation.
We also note that our own review of the record fails to disclose
any reason to grant the appellant's RTR. Appellant did not seek EEO
counseling regarding allegation (1) in a timely manner. 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. Since appellant
received the Division Chief's memorandum on March 7, 1995, his May 31,
1995 counselor contact was well beyond the allotted 45 days. We also
note that appellant did not provide an explanation for not complying
with the 45-day time requirement.
With regard to allegations (2), (3), and (6), we note that the
Commission's regulations require that an agency accept a complaint from
any aggrieved employee or applicant for employment who believes that he or
she has been discriminated against by that agency because of their race,
color, religion, sex, national origin, age or disabling condition. 29
C.F.R.�1614.103; �1614.106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994). EEOC Regulation 29
C.F.R. �1614.107(a) provides that an agency shall dismiss an allegation
that fails to state a claim under �1614.103.
Allegation (2)
According to appellant, on Monday, May 8, 1995 and Tuesday, May 9, 1995,
he was in court concerning a civil action he filed against the agency on
an EEO related matter. Since he was not scheduled to work on these days,
appellant requested compensatory time for both days. His request was
denied by the agency. According to the agency, an employee may not
receive compensatory time for a day they are not scheduled to work.
We find that appellant failed to establish that he suffered a harm or
loss to a term, condition, or privilege of his employment for which
there is a remedy.
Allegation (3)
We find that appellant did not establish that the agency's failure to
take action against his co-worker caused him to suffer a harm or loss to
a term, condition, or privilege of his employment. On appeal, appellant
maintained that his allegation concerned the unequal treatment between
him and his co-worker. We note, however, that, to the extent appellant
claimed he was treated differently, in 1988, than his co-worker was in
1995, he failed to articulate a present harm.
Allegation (6)
We find that appellant did not establish that the agency's failure to
inform him of the action it took against his co-worker or its showing of
his memorandum to her, caused him to suffered a harm or loss to a term,
condition, or privilege of his employment for which there is was remedy.
On appeal, appellant argued that showing his memorandum to his co-worker
"was bound to increase hostility towards [him] in the Branch." We find
that appellant, by speculating about the possible future effects of
showing his memorandum to the co-worker, did not articulate a present
harm that would render him aggrieved.
With regard to allegations (4), (5), and (7), we note that EEOC
Regulation 29 C.F.R. �1614.107(e) states that the agency shall dismiss
a complaint or a portion of a complaint that is moot. To determine
whether an allegation is now moot, it must be ascertained: (1) if
it can be said with assurance that there is no reasonable expectation
that the alleged violation will recur; and (2) if the interim relief
or events have completely and irrevocably eradicated the effects of
the alleged violation. County of Los Angeles v. Davis, 440 U.S. 625
(1979). When such circumstances exist, no relief is available and no
need for a determination of the rights of the parties is presented.
Allegation (4)
The agency indicated that, due to the nature of the work, it is
sometimes difficult to strictly adhere to a schedule. Appellant,
however, was informed that in the future when he performed duties
that were not reflected on the schedule, the information would be
communicated to the proper editor and that the schedule would be adjusted
accordingly. The agency also indicated that the editors were notified of
this new procedure. We also note that according to an agency official,
employees are not rated on the number of times they perform a function,
but on the quality of their work.
We find that there is no reasonable expectation that the above violation
will recur. The agency acknowledged that its employees should have their
work properly reflected in its records and took steps to insure this was
done. We also find that the relief provided by the agency has completely
and irrevocably eradicated the effects of the alleged violation.
Allegation (5)
The EEO counselor's report indicates that appellant was subsequently
provided with copies of the mistakes that he made. According to the
agency, the standard procedure is to bring an employee's mistakes to their
attention in order to improve the quality of the broadcast. We find that
there is no reasonable expectation that the above violation will recur and
that the agency, by giving appellant copies of his errors, has completely
and irrevocably eradicated the effects of the alleged violation.
Allegation (7)
According to appellant, a script that was taped by himself and another
employee may have been destroyed by a Team Leader. Appellant attributed
this matter to an attempt to retaliate against him for engaging
in previous EEO activity. He acknowledged, however, that the same
script was later taped by him and his co-worker and was subsequently
broadcasted. According to the agency, the confusion over this matter was
the result of a misunderstanding between two managers, who were both on
leave at the time the problem arose. We find that there is no reasonable
expectation that the above violation will recur. We also find that,
once the matter was resolved, the agency provided relief that completely
and irrevocably eradicated the effects of the alleged violation.<2>
CONCLUSION
After a review of appellant's request to reconsider, the previous decision
and the entire record, the Commission finds that appellant's request fails
to meet the criteria of 29 C.F.R. �1614.407(c), and it is the decision
of the Commission to deny the request. The decision in EEOC Appeal
No. 01961128 (July 31, 1997) remains the Commission's final decision.
There is no further right of administrative appeal from a decision of
the Commission on a request to reconsider.
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:
November 4, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1. Based on erroneous information in the complaint file, the previous
decision listed the agency number as OCR-95-66. The correct agency
number is provided above.
2. In the absence of a request for compensatory damages by appellant,
we find that he has received all the relief for which he is entitled.