05990773
08-28-2000
Janet G. Mislan, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Janet G. Mislan v. Department of the Treasury
05990773
August 28, 2000
Janet G. Mislan, )
Complainant, )
) Request No. 05990773
v. ) Appeal No. 01981857
) Agency No. 98-3035
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
On June 7, 1999, the Department of the Treasury (agency) initiated a
request to the Equal Employment Opportunity Commission (Commission) to
reconsider the decision in Janet G. Mislan v. Robert E. Rubin, Secretary,
Department of the Treasury, EEOC Appeal No. 01981857 (May 13, 1999).<1>
EEOC Regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 64 Fed. Reg. 37,644, 37,656
(1999)(to be codified and hereinafter referred to as EEOC Regulation 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. For the reasons set forth below, the agency's request is
denied, however the Commission will reconsider the previous decision on
its own motion.
ISSUE PRESENTED
The issue presented is whether the previous decision erred in vacating
the agency's final decision (FAD), which had dismissed complainant's
complaint for stating the same claim as a complaint previously filed and
for untimeliness, and remanding it for consolidation with that previously
filed claim.
BACKGROUND
Complainant filed a formal complaint of discrimination, Complaint 98-3035,
on November 12, 1997, alleging discrimination on the bases of physical
disability (heart disease - Wolff-Parkinson-White (WPW) syndrome)
and retaliation (prior EEO activity). The agency characterized her
complaint as: 1) on July 25, 1997 and on August 8, 1997, the agency
denied her request to be moved to a work area away from her supervisor;
2) on July 14 she was forced to go to a stressful meeting that caused a
WPW attack; and 3) she was listed as AWOL on dates between July 10-17,
1997, even though her supervisor knew she was in the hospital recovering
from the WPW attack she had at the July 14 meeting. The agency issued
a FAD dismissing Complaint 98-3035 on the grounds that it raised the
same allegations as a previously filed complaint, that she had failed
to timely contact an EEO Counselor regarding her allegations, and that
she was untimely in filing the formal complaint in the 15-day period
following her receipt of the Notice of Right to File.
In its FAD, the agency found that complainant raised the issues of the
July 14 meeting, the July AWOL charges, harassment and the request to
be moved at a previous counseling session that was initiated on July
16, 1997. A Notice of Right to File was issued on August 18, 1997,
and Complaint 97-3289 was filed by complainant on August 28, 1997. The
agency's characterization of Complaint 97-3289 was that complainant
was discriminated against on the bases of disabling condition (chronic
back condition) and retaliation when: 1) she was not provided with a
reasonable accommodation in connection with moving boxes to two workshops
she was scheduled to teach on July 9 and 15, 1997; 2) she was removed
from teaching both workshops; 3) she was charged with AWOL time on
July 10, 11 and 15, 1997; and, 4) she was harassed when allegations 1,
2 and 3 occurred and when she was verbally abused by her second level
manager in a meeting on July 14, 1997. The agency accepted all four of
those allegations. The agency argued that because allegations 3 and 4
were filed in Complaint 97-3289 they cannot again be raised in Complaint
98-3035 and that the request to be moved was counseled in connection
with Complaint 97-3289 and cannot again be raised in Complaint 98-3035.
In finding that complainant was untimely, the agency argued that because
the claims of Complaint 98-3035 and Complaint 97-3289 are identical,
then for both complaints the Notice of Right to File that governs the
15-day time period to file a formal complaint is the Notice issued on
August 18, 1997. In this way, the agency found that complaint 98-3035,
filed on November 12, 1997, was not timely filed, even though the Notice
of Right to File was issued on October 30, 1997. The agency further
argued that the July 14 meeting and the July 1997 AWOL charges should be
dismissed because of untimely contact with an EEO Counselor. According to
the agency, the first contact with an EEO Counselor for Complaint 98-3035
was on September 12, 1997, more than 45 days past the incidents.
After receiving the letter from the agency accepting Complaint 97-3289
for processing and clarifying the issues for investigation, complainant
wrote back and asked that the allegations pertaining to the AWOL
charges and the July 14 meeting be removed from this complaint as they
would be dealt with under her other EEO complaint, Complaint 98-3035.
Complainant also argued that her initial contact with an EEO counselor
for Complaint 98-3035 was on August 18, 1997, and that she was timely.
She was prevented from speaking to the Counselor because of the WPW
attack that she suffered and her subsequent admission to the hospital. She
claims that the EEO Counselor gave her a note on August 18 acknowledging
her request to see her as an EEO Counselor.
The previous decision vacated the agency's FAD for Complaint 98-3035 and
remanded the claims back to the agency for consolidation and continued
processing with Complaint 97-3289. It did not address the agency's
dismissal on the basis of complaint's timeliness in contacting an
EEO Counselor, and her timeliness in filing the formal complaint for
Complaint 98-3035.
In its request to reconsider (RTR), the agency submitted evidence that
showed that Complaint 97-3289 had reached a resolution prior to the
previous decision's issuance. Complaint 97-3289 had been investigated
and complainant requested a hearing before a Commission Administrative
Judge (AJ). The AJ, without holding a hearing, issued a decision
containing his findings and conclusions. He found that complainant
had not established discrimination or harassment with respect to any
of her claims. The AJ considered claims 1, 2 and 4 in his decision,
noting specifically that complainant had requested that claim 3 be removed
from Complaint 97-3289. The agency issued a FAD which adopted the AJ's
conclusion that discrimination and harassment had not been established,
but which modified the AJ's reasoning. Complainant did not appeal the
FAD to the Commission.
The complainant did not submit a response to the agency's RTR.
ANALYSIS
In order to merit the reconsideration of a prior Commission decision, the
requesting party must submit written argument which tends to establish
that at least one of the criteria of 29 C.F.R. � 1614.405(b) is 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). An RTR is not merely a form of a second appeal.
Regensberg v. U.S. Postal Service, EEOC Request No. 05900850 (September 7,
1990).
After a careful review of the record, the Commission finds that the
agency's RTR does not meet the regulatory criteria of 29 C.F.R. �
1614.405(b). The Commission, however, has decided to reconsider the
case on our own motion.
We reaffirm our finding from the previous decision that claim 1 of
Complaint 98-3035 is not the same as any of the claims advanced in
Complaint 97-3289. We further find that claim 2 of Complaint 98-3035
was fully considered as part of complainant's case before the AJ in
Complaint 97-3289 in the form of claim 4, but that claim 3 of Complaint
98-3035 was specifically requested by complainant not to be part of
Complaint 97-3289 for the express purpose of including it with Complaint
98-3035. Therefore, the claims that were not considered by the AJ or
the agency in the final disposition of Complaint 97-3289, claims 1 and
3 of Complaint 98-3035, have yet to be investigated and addressed by
the agency, and shall be remanded to the agency for further processing.
The agency's dismissal of claim 2 of Complaint 98-3035 as the same claim
as a previously filed complaint is affirmed. We now turn to whether
complainant was timely in her EEO contact and in filing her formal
complaint for claims 1 and 3 of Complaint 98-3035.
We find that the agency's argument that complainant was untimely in
filing her formal complaint for Complaint 98-3035 should be reversed.
Complainant was counseled for this complaint separately from her
counseling for Complaint 97-3289 and received a separate Notice of
Right to File, on October 30, 1997. That Notice of Right to File is
the document that governs when her 15-day limit began to run, and she
filed on November 12, 1997, within that 15-day time frame. Therefore,
her formal complaint for Complaint 98-3035 was timely filed.
We also find that complainant was timely in her initial EEO Counselor
contact for 98-3035. Complainant claimed to have initially contacted the
EEO Counselor on August 18, 1997. The agency claimed that complainant's
first contact was on September 12, 1997. The record reveals a memo
written by the EEO Counselor recounting the chronology of events for
complainant's EEO contact. It reveals that complainant did indeed contact
the Counselor on August 18, 1997, and left her a phone message indicating
that she would like to discuss an EEO matter with her. The EEO Counselor
returned that phone call, and ascertained that complainant wished to
discuss an EEO matter with her. The Commission has held that in order
to establish EEO Counselor contact, an individual must contact an agency
official logically connected to the EEO process and exhibit an intent
to begin the EEO process. Allen v. United States Postal Service, EEOC
Request No. 05950933 (July 9, 1996). Complainant has met that threshold
and exhibited the intent to discuss an EEO matter with the EEO Counselor
on August 18, 1997. Her intervening hospital stay prevented her from
further discussing the matter with the EEO Counselor until September
12, 1997, but she had made that initial contact, which we find to be
sufficient for timeliness purposes.
Therefore, complainant's EEO contact was timely.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds the agency's
request does not meet the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to deny the agency's request.
The Commission reconsiders the decision in EEOC Appeal No. 01981857
(May 13, 1999) on its own motion. The decision is REVERSED and the
claims are REMANDED to the agency for further processing. There is no
further right of administrative appeal from a decision of the Commission
on a request for reconsideration.
ORDER
The following claims of complainant are remanded to the agency:
that she was discriminated against based on her physical disability
(heart disease - Wolff-Parkinson-White (WPW) syndrome) and retaliation
(prior EEO activity) when 1) on July 25, 1997 and on August 8, 1997,
the agency denied her request to be moved to a work area away from
her supervisor, and 2) she was listed as AWOL on dates between July
10-17, 1997. The agency is ORDERED to process the remanded claims in
accordance with 64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.108). The agency shall
acknowledge to the complainant that it has received the remanded claims
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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:
08-28-00
Date Carlton M. Hadden, Director
Office of Federal Operations
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.