05970148
11-08-1999
Jerry W. Stewart, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Jerry W. Stewart v. Department of the Navy
05970148
November 8, 1999
Jerry W. Stewart, )
Appellant, )
) Request No. 05970148
v. ) Appeal No. 01953880
) Agency No. DON-93-46531-002
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
__________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On November 22, 1996, the Department of the Navy (hereinafter referred
to as the agency) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision
in Jerry W. Stewart v. John H. Dalton, Secretary, Department of
the Navy, EEOC Appeal No. 01953880 (October 21, 1996), received on
October 24, 1996. 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; however, the Commission has decided to reconsider
the previous decisions on its own motion.
ISSUE PRESENTED
The issue presented is whether the previous decision's order, which
directed the agency to request the assignment of an Administrative
Judge to conduct a hearing on allegations (a)-(f) of appellant's formal
complaint, should be vacated.
BACKGROUND
In light of the narrow issues to be decided herein, the Commission
will not repeat the previous decision's narrative. Instead, we
note the following salient facts: appellant applied for but was not
selected to the position of Personnel Officer, GM-200-14, at the Naval
Postgraduate School in Monterey, California (hereinafter allegation
(1)). On January 19, 1993, he initiated contact with an EEO counselor.
Appellant subsequently filed a formal complaint, alleging that he was the
victim of unlawful employment discrimination on the basis of sex (male).
Appellant, in the complaint, stated that a "pattern of discrimination took
place over a period of time starting about 1987 and continues to date."
The agency accepted the following issues for investigation:
a. Whether there was a pattern of not selecting men for HRO Director
jobs in California, for which appellant was an applicant.
b. Whether women, who didn't have prior personnel experience and were
less qualified than appellant, were selected for Personnel Officer jobs.
c. Whether Navy personnel recruitment procedures are discriminatory
in that (1) only one name is referred to the selecting official, (2)
noncompetitive candidates are not rated and ranked with competitive
candidates, and (3) the panel recommendation is rubber stamped by
the selecting official who usually doesn't conduct interviews. These
procedures [appellant] allege[d] prevented [him] from being considered
by the selecting official.
d. Whether the Navy emphasized placing women into higher level positions
due to a perceived "glass ceiling."
e. Whether remarks were made about (1) selecting women for Personnel
Officer jobs and (2) [appellant's] selection/application for the
Personnel Officer jobs that improperly influenced [his] nonselection.
These alleged remarks were made by a high level official who influences
what the panel members do.
f. Whether the selecting factors set by the selecting official for the
needs/requirements of the Personnel Officer position were discriminatory.
In addition to the above, appellant's formal complaint also contained
an attachment that listed thirteen Personnel Officer selections that
were made from 1987 through 1993. Appellant provided the name of the
selectees; the estimated selection dates; the prior experience of the
selectees; and the location of the position.
A hearing was scheduled before an Administrative Judge (AJ-1). On
November 4, 1994, AJ-1 issued a document identified as a "Remand Order."
AJ-1, among other things, determined that an additional information was
necessary in order to determine whether appellant's allegations of "a
continuing pattern or practice" of discrimination against male applicants
had merit, and whether appellant was entitled to a retroactive promotion.
Moreover, AJ-1 determined that additional information was needed with
regard to seven of the thirteen nonselections included in appellant's
complaint.
On March 24, 1995, the agency issued a final decision pertaining only
to the nonselections. The agency dismissed six of nonselections on the
grounds that appellant did not seek EEO counseling in a timely manner.
Although the agency acknowledged that appellant initiated timely EEO
contact with regard to the seventh nonselection, the issue was dismissed
because he did not complete the counseling process. The agency also
determined that the continuing violation theory was not applicable here,
because the nonselections involved different selecting officials, panels,
and activities.
The previous decision found that AJ-1's remand of the seven nonselections
was improper. According to the decision, the thirteen nonselections
identified by appellant should only have been considered as evidence of
appellant's overall claim, not as separate allegations of discrimination.
Consequently, the agency was directed to:
[r]equest assignment of an Administrative Judge to conduct a hearing on
allegations (a)-(f), accepted for investigation by the agency in the
complaint filed by appellant on May 18, 1993. A copy of the notice
requesting assignment of an Administrative Judge must be sent to the
Compliance Officer as referenced below.
The agency, in its request for reconsideration (RTR), maintained that
the previous decision erred when it found that processing ever ceased
on allegations (a)-(f). According to the agency, after AJ-1 remanded
the seven nonselections for a supplemental investigation, it continued
processing allegation (1). A hearing was subsequently held, and a final
decision was issued.<1> Allegations (a)-(f), the agency maintained,
were investigated and addressed pursuant to the processing of allegation
(1). Therefore, the agency argued that no further action was required,
and the previous decision's order should be withdrawn. The agency
submitted a copy of AJ-2's findings concerning allegation (1), and a
copy of its May 14, 1996 final decision.
Appellant, in his response, argued that the agency's contentions were
not correct. Although he agreed that the agency continued processing
allegation (1), appellant stated that: "[s]ince I have never had a
hearing on all my allegations and I had an appeal pending on getting my
allegations addressed, how could the Navy have issued a final decision?"
The agency, in a letter dated December 23, 1996, reiterated its contention
that no further action was warranted. Specifically, the agency noted
that it did not have to address the nonselections which were remanded
by AJ-1, because the previous decision found that these matters were
not separate allegations of discrimination, but merely evidence of
appellant's overall claim, that is, allegations (a)-(f). Consequently,
the agency maintained that since allegations (a)-(f) have already been
investigated and addressed, there was no further action required.
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. �1614.407(c) 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. USPS, EEOC Request No. 05900850 (September 7, 1990).
Instead, it is an opportunity to submit newly discovered evidence,
not previously available; to establish substantive error in a previous
decision; or to explain why the previous decision will have effects
beyond the case at hand. Lyke v. United States Postal Service, EEOC
Request No. 05900769 (September 27, 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. �1614.407(c). Therefore, the Commission will deny the
agency's request. We find that the agency's position with respect to
allegations (a)-(f) to be, at best, disingenuous. The only matter that
was processed by the agency, after AJ-1's remand Order of November 4,
1994, was allegation (1). Although certain aspects of appellant's overall
claim may have been discussed in the processing of allegation (1)<2>,
we are not persuaded that his contention he was subjected to a pattern of
discrimination dating back to 1987, as reflected in allegations (a)-(f),
has ever been addressed. Consequently, we will remand allegations
(a)-(f) pursuant to the previous decision's Order.
Notwithstanding the above, the Commission, for the reasons stated below,
has decided to reconsider the previous decision on our own motion.
As noted above, the previous decision found that "[a]ppellant
identified thirteen nonselections as evidence of the agency's
alleged discriminatory pattern and practice of not hiring men for
certain positions; he did not raise them as separate allegations."<3>
Consequently, the previous decision found that AJ-1's decision to remand
seven of the nonselections was improper. We disagree. According to AJ-1,
"[a]dditional investigation is needed to determine whether [appellant's]
allegation of 'a continuing pattern or practice' of discrimination
against male applicants has merit and would entitle him to a retroactive
promotion." In addition, AJ-1 found that:
[t]he investigative file deals primarily with the personnel officer
position at the Navy Postgraduate School. IF 116-386. Even though the
record provides some information about four additional personnel officer
selections at other facilities (IF 387-466), it lacks detailed statements
from the selecting officials, members of the OCPM rating panel and the
selection advisory panels. 29 C.F.R. �1614.108(b) requires "a complete
and impartial factual record upon which to make findings" with regard to
the issues raised by [appellant]. Because the record before me does not
meet this standard, a remand for further investigation of the complaint
is required.
Apparently, AJ-1 felt that in order to reach a determination regarding
allegations (a)-(f), she needed, at a minium, the information that was
requested concerning the seven remanded nonselections. Although the
previous decision correctly determined that the remanded nonselections
were evidence of the agency's alleged discriminatory pattern and practice
of not hiring men for certain positions, we find that the decision erred
in not directing the agency to comply with AJ-1's Remand Order. We, like
AJ-1, find that this information is necessary in order to supplement
the record. Therefore, we will MODIFY the previous decision's Order
accordingly.
Finally, due to the confusing procedural history of this case, we find
that the 30-day time limitation period for filing an appeal of the
agency's May 14, 1996 final decision concerning allegation (1) should be
tolled until appellant receives this decision. 29 C.F.R. �1614.604(c).
CONCLUSION
After a review of the agency's request to reconsider, appellant's
response, the previous decision, and the entire record, the Commission
finds that the agency'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 Commission, however, has decided to reconsider the
decision in EEOC Appeal No. 01953880 (October 21, 1996) on its own motion.
The decision, as MODIFIED herein, remains the Commission's final decision.
The agency's final decision is REVERSED. There is no further right of
administrative appeal on a decision of the Commission on a Request to
Reconsider.
ORDER
The agency, within 60 days of receiving this decision, is directed to
conduct a supplemental investigation that will address the selection of
Personnel Officers, in which appellant was an applicant, at the following
agency facilities:
NAS North Island
PWC Oakland
Camp Pendleton
NWS Concord
The agency will obtain affidavits from the selecting officials, members of
the OCPM rating panel, and members of the selection advisory panels. Each
witness is to be questioned regarding both the merits of the selection and
any influence OCPM may have had on the selection process. Furthermore,
the agency will examine the promotion actions, in which appellant was an
applicant, at the following three facilities to determine whether there
was improper OCPM influence or pressure to select a female applicant:
Treasure Island (IF 84)
San Bruno (IF 84)
Moffett Field (IF 468)
After completing the supplemental investigation, the agency is ORDERED to
request the assignment of an Administrative Judge to conduct a hearing on
allegations (a) - (f), accepted for investigation by the agency in the
complaint filed by appellant on May 18, 1993. A copy of the agency's
supplemental investigation and notice requesting the assignment of an
Administrative Judge 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
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The 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,
the 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 the
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.
STATEMENT OF RIGHTS
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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 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 (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. 8, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1With regard to allegation (1), a new EEOC Administrative Judge (AJ-2)
found that appellant was unable to establish that he was discriminated
against because of his sex when he was not selected for the position of
Personnel Officer at the Naval Post Graduate School. The agency's final
decision adopted AJ-2's recommendation. After reviewing the Commission's
records, we find no evidence that appellant ever filed an appeal of that
decision.
2We note in this regard AJ-2's statement that:
[Appellant] also sought to show pretext by presenting evidence of [a
management official's] bias in favor of women, the result of which was
the selection of [the female selectee] and, of course, [appellant's]
non-selection. Evidence was presented with respect to [the management
official's] expressed preference for hiring women into Personnel Officer
positions, her interference in several selections to accomplish that end,
and her generally favorable treatment of female employees in her office.
Witnesses who worked with [the management official] testified that upon
hearing of [a male employee's] intention to leave ... [the management
official] commented that the Personnel Officer job there [would go to
a certain female employee.] They further alleged that in 1989 when
[a male employee] was selected for the Personnel Officer position in
Washington, [the management official] lamented that now she would
`never get a woman in the Northeast(sic).' The testimony of these
male witnesses cannot be dismissed as sour grapes or the expressions
of reverse-bias because the [the management official's] preferential
treatment of women was confirmed, and embellished, by [a female employee].
Both in her affidavit and her testimony in the related EEO case, [the
female employee] recounted [the management official's] various displays
of pro-female bias, including other instances in which she manipulated
several Personnel Officer selection processes to insure the selection
of the female she favored.
(Recommended Decision pgs. 16-17).
3We note that appellant did not contest this determination by the previous
decision.