05980871
11-04-1999
John T. Collier, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
John T. Collier v. Department of Transportation
05980871
November 4, 1999
John T. Collier, )
Appellant, )
) Request No. 05980871
v. ) Appeal No. 01976062
) Agency No. DOT-6-97-6076
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On June 4, 1998, the agency timely initiated a request to the Equal
Employment Opportunity Commission (the Commission) to reconsider the
decision in John Collier v. Rodney E. Slater, Secretary, Department of
Transportation, EEOC Appeal No. 01976062 (May 21, 1998). 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); or 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, the agency's request is denied, however,
the Commission will reconsider the previous decision on its own motion.
ISSUES PRESENTED
The issues presented are whether the agency's request for reconsideration
satisfies the requirements of 29 C.F.R. �1614.407(c), and whether the
order in the previous decision to conduct a supplemental investigation
and issue a new final agency decision should be vacated.
BACKGROUND
Appellant filed an EEO complaint on June 6, 1997, alleging that he had
been discriminated against on the basis of sex (male) when:
1) on January 15, 1997, he was relieved of his supervisory duties;
2) on January 24, 1997, the agency proposed demoting him from his
position of Supervisory Air Traffic Control Specialist, FG-2152-14,
to the position of Air Traffic Control Specialist, FG-2152-13; and
3) A 14-day suspension was imposed on him, effective March 16, 1997,
for failing to report an operational deviation, and for failing to take
action when his subordinates made sexist comments such as "chick alert"
and "cleavage."
The agency accepted allegation 3 for investigation. In the final
agency decision (FAD), the agency dismissed allegation 1 for untimely
EEO Counselor contact. Allegation 2 was dismissed because it alleged a
proposal to take a personnel action. The previous decision found that
there was not enough information in the record in order to determine
when appellant's initial contact with an EEO Counselor was. It also
found that the record contained insufficient evidence to determine if
the proposed demotion had been effected, reduced or otherwise resolved.
It vacated the agency's dismissal of the two allegations and remanded
for a supplemental investigation and the issuance of a new FAD or notice
of processing.
In its Request to Reconsider (RTR), the agency presented evidence that
showed that after it received a copy of appellant's appeal of the FAD,
it had reinstated and investigated allegation 1 based on the information
contained in appellant's appeal statement. It also claimed that
allegation 2, the proposed demotion, was covered during the investigation
and that the Facility Manager testified in his affidavit that the proposed
demotion was never carried out. The Report of Investigation conducted
by the agency (which had been completed prior to the issuance of the
previous decision) was submitted in support of the RTR.
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).
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). The Commission has held that a request to reconsider
is not a means to submit evidence that should have been provided before
the Commission's previous decision was issued. Andrews v. Department of
the Navy, EEOC Request No. 05900215 (May 3, 1990).
In the interests of judicial economy, the Commission has, however, decided
to reconsider the previous decision on its own motion. The previous
decision ordered the agency to conduct a supplemental investigation into
when appellant had initially attempted to contact an EEO Counselor and
whether the proposed demotion had ever taken effect, and issue a new
FAD or notice of processing. We find that the agency, by reinstating
and investigating allegation 1 and by determining during the course
of the investigation that the proposed demotion was never carried out,
has already, for all intents and purposes, complied with the order in
EEOC Appeal No. 01976062. Therefore, there is no longer any need for
it to conduct a supplemental investigation and issue a new FAD.
CONCLUSION
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 does not satisfy 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. 01976062 (May 21, 1998) own its own motion, pursuant to 29
C.F.R. �1614.407(a). The portion of the previous decision which ordered
the agency to issue a new FAD or notice of processing is hereby VACATED.
The agency's final decision as it pertains to allegation 2 is AFFIRMED.
There is no further right of administrative appeal from a decision of
the Commission on a 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 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. 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:
November 4, 1999
______________ __________________________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat