05970678
01-15-1999
Joan E. Klar, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Joan E. Klar v. Department of the Treasury
05970678
January 15, 1999
Joan E. Klar, )
Appellant, )
)
v. ) Request No. 05970678
) Appeal No. 01964621
Robert E. Rubin, ) Agency No. 96-4075
Secretary, )
Department of the Treasury, )
Agency. )
)
)
DENIAL OF REQUEST TO RECONSIDER
On April 3, 1997, the Department of the Treasury (hereinafter referred
to as the agency) timely initiated a request to the Equal Employment
Opportunity Commission (Commission) to reconsider the decision in Joan
E. Klar v. Robert E. Rubin, Secretary, Department of the Treasury, EEOC
Appeal No. 01964621 (March 4, 1997) received on March 10, 1997. EEOC
regulations provide that the Commission may, in its discretion, reconsider
any previous 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).
After a review of the agency's request for reconsideration, 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.<1> The decision
in EEOC Appeal No. 01964621 (March 4, 1997) remains the Commission's
final decision. The agency is directed to comply with the Order of the
previous decision, as modified and set forth below. There is no further
right of administrative appeal from a decision of the Commission on a
request to reconsider.
ORDER
The agency shall supplement the record with evidence addressing the
nature of appellant's purported discussions with an EEO Counselor in
1993. At a minimum, the agency shall include statements from the EEO
Counselor that appellant purportedly spoke with in 1993. Within 90-days
of the date this decision becomes final, the agency shall determine
whether appellant timely contacted an EEO Counselor, and either issue a
letter to appellant accepting allegation 1 for investigation or reissue
a new FAD dismissing allegation 1. The letter accepting allegation 1
for investigation or the new FAD dismissing allegation 1 shall clearly
identify the incidents at issue in allegation 1. A copy of the agency's
letter to appellant accepting allegation 1 must be sent to the Compliance
Officer as referenced herein.
The agency shall, within 30 days of the date this decision becomes final,
begin to provide EEO counseling to appellant regarding allegations 3
and 4 and process the matter pursuant to �1614.105 et seq. After the
completion of such counseling, appellant shall refile her complaint
regarding allegations 3 and 4. Thereafter, the agency shall issue a
letter to appellant either accepting or rejecting allegations 3 and/or
4. A copy of the letter to appellant accepting allegations 3 and/or 4
for investigation and/or a copy of the new FAD dismissing allegations
3 and/or 4 shall be sent to the Compliance Officer as referenced herein.
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.
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:
JAN 15, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1In response to the agency's argument that the previous decision
inappropriately remanded allegations 3 and 4 for EEO counseling rather
than affirming the agency's dismissal of these allegations, we clarify
that such a dismissal was inappropriate in view of the potential for
these allegations to be related to the remanded and as yet not fully
defined allegation 1. The agency is advised that it should, to the
extent practicable, consolidate appellant's allegations of harassment
raised herein (allegations 1-4) for further processing.