Joann Cannizzaro, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 28, 2000
05A01281 (E.E.O.C. Nov. 28, 2000)

05A01281

11-28-2000

Joann Cannizzaro, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Joann Cannizzaro v. U.S. Department of Veterans Affairs

05A01281

November 28, 2000

.

Joann Cannizzaro,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Request No. 05A01281

Appeal No. 01A03656

Agency No. 200H-1484

DENIAL OF REQUEST FOR RECONSIDERATION

The agency initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in

Joann Cannizzaro v. U.S. Department of Veterans Affairs, EEOC Appeal

No. 01A03656 (July 27, 2000).<1> EEOC Regulation 29 C.F.R. � 1614.405(b)

provides that the Commission may, in its discretion, reconsider any

previous Commission decision where the requesting party demonstrates that:

(1) the appellate decision involved a clearly erroneous interpretation

of material fact or law; or,

(2) the appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

In her formal complaint, complainant stated that she was being

subjected to retaliatory harassment when pressured and threatened

with discipline should she refuse to accept an unsuitable position in

another department of the medical center. The agency dismissed this

complaint on the grounds of failure to state a claim, also finding that

this single incident did not state an actionable claim of harassment.

See 29 C.F.R. � 1614.107(a)(1). On appeal, complainant argued that

the incident mentioned in the formal complaint was merely one example

of the on-going harassment to which she had been subjected since filing

an EEO complaint against a certain agency official. In response, the

agency argued that it was only bound to act on what was raised in the

formal complaint, so that its dismissal was proper.

The previous decision reversed the agency's dismissal, finding

that complainant clearly set forth a harassment claim in her formal

complaint, and that the agency improperly failed to consider all of the

circumstances supporting this claim. In its request for reconsideration,

the agency again argues that it is not bound to look beyond the formal

complaint when deciding to accept or reject a claim for investigation.

We advise the agency that when a claim of harassment is set forth in a

formal complaint, in order to guard against fragmentation, the agency

should seek clarification from its own records or from the complainant

concerning the relevant background circumstances and evidence which

support this claim. See EEO Management Directive 110 at 5-5 (November

9, 1999). Here, the EEO counselor's report contained much of the

pertinent information regarding the instant harassment claim, yet the

agency improperly refused to consider it because only the claim, but

not all of the evidence, was set forth in the formal complaint.

After a review of the agency's request for reconsideration, the

previous decision, and the entire record, the Commission finds that the

request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it

is the decision of the Commission to deny the request. The decision

in EEOC Appeal No. 01A03656 remains the Commission's final decision.

There is no further right of administrative appeal on the decision of

the Commission on this request for reconsideration.

ORDER (E0900)

The agency is ordered to process the remanded harassment claim in

accordance with 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.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

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 within ninety (90) calendar days from the date that you receive

this decision. 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 (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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 28, 2000

__________________

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.