05980365
11-04-1999
Joan Harman, Appellant, v. Janice R. Lachance, Director, Office of Personnel Management, Agency.
Joan Harman, )
Appellant, )
) Request No. 05980365
v. ) Appeal No. 01973219
) Agency No. 97-08
Janice R. Lachance, )
Director, )
Office of Personnel Management, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
Appellant timely initiated a request to the Commission to reconsider
its decision in Harman v. Office of Personnel Management, EEOC Appeal
No. 01973219 (January 22,1998). EEOC regulations provide that the
Commission may, in its 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: (1) 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); (2) 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); or
(3) the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth below, appellant's request is denied
BACKGROUND
Appellant filed an EEO complaint on January 3, 1997 alleging that she
had been discriminated against on the bases of race (White), disability
(Crohn's disease), and reprisal (prior EEO activity). First, appellant
alleged that a group of bullies are permitted by agency management to
create a psychological atmosphere that is demeaning and intimidating to
the small minority of white workers in the office where she is employed.
Second, appellant alleged that the agency improperly placed two statements
in her personnel folder that reflected unfavorably upon her, and that
the agency took this action in reprisal for previously pursuing the EEO
complaint process.
Third, she alleged that she suffers from Crohn's disease, which has
been aggravated by tension she has experienced at the facility where
she is employed. This tension, she noted, has caused her to be �clumsy
and risk taking� in efforts to please her supervisor. Specifically,
appellant alleged that a junked personal computer and monitor block her
access to a printer, thereby forcing her to lean over her desk numerous
times per day to retrieve her work; that both sides of an aisle across
form her desk are blocked; and that she is compelled to swerve through
the area repeatedly during the work day to reach the printer, copier,
shredder, and other equipment.
In its final decision, the agency dismissed the first and third
allegations upon concluding that these matters were raised by appellant
in two previous complaints. The second allegation (i.e., placement
of unfavorable comments in appellant's personnel folder) was accepted
for investigation.
On appeal, appellant argued that the allegations dismissed in her formal
complaint were done so improperly. Specifically, she argued that �new
incidents of discrimination� had arisen since the complaint at issue
here had been filed. In response, the agency reasserted the arguments
put forth in its final decision.
In our previous decision, we ruled that the evidence reflected that,
with respect to the first allegation (i.e., the purported bullying),
appellant did not allege any new incidents of discrimination. Instead,
we found that she merely elaborated on matters raised in previous
complaints. As such, regarding this allegation, we affirmed the final
agency decision. We reversed, however, the agency's decision concerning
the third allegation (i.e., blocked access to the printer and other
office equipment). Regarding this allegation, we found that in the
complaint at issue and a previous one, appellant was alleging that she
should have been provided a reasonable accommodation for her disability.
Citing Commission precedent<1>, we ruled that since failure to accommodate
may constitute a recurring violation, the agency's decision to dismiss
this allegation for stating the same matter raised in a prior complaint
was improper. From our decision regarding the first allegation comes
this appeal.
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. U.S. Postal Service, 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. U.S. Postal Service, EEOC
Request No. 05900769 (September 27, 1990).
In her request for consideration, appellant does not submit any new
evidence which establishes that a substantial error was made in our
previous decision, nor does she argue that our decision contained an
erroneous interpretation of law or fact. Instead, she merely argues that
the two accepted allegations, i.e., placement of unfavorable comments
in appellant's personnel folder and blocked access to the printer and
other office equipment, which centered on retaliation and disability,
respectively, were also based upon race. It appears that she believes that
our dismissal of the first allegation (i.e., the purported bullying),
which centered upon race, prevents her from alleging race as a basis in
regards to this complaint. However, our previous decision has no such
effect because, as we have held, a complainant may allege discrimination
on all applicable bases, including sex, race, national origin, color,
religion, age, disability and reprisal, and may amend his or her complaint
at any time, including at the hearing, to add or delete bases without
changing the identity of the claim. See Sanchez v. Standard Brands, Inc.,
431 F.2d 455 (5th Cir. 1970); Dragos v. United States Postal Service,
EEOC Request No. 05940563 (January 19, 1995).
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request does not satisfy the criteria of 29 C.F.R. �1614.407(c).
Accordingly, it is the decision of the Commission to deny the request.
Our decision in EEOC Appeal No. 01973219 remains our final decision in
this matter.
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 State District Court WITHIN NINETY
(90) DAYS from the date that you receive this decision. You should be
aware, however, that courts in some jurisdictions have interpreted the
Civil Right's 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:
Nov. 4, 1999
______________ __________________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat1 See, Mitchell v. Department of Commerce,
EEOC Appeal No. 01934120 (March 4, 1994) (holding that a failure
to accommodate may constitute a recurring violation, that is,
a violation that recurs anew each day that an employer fails to
provide an accommodation.)