Joan E. Klar, Appellant,v.Robert E. Rubin, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJan 15, 1999
05970678 (E.E.O.C. Jan. 15, 1999)

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.