05A01203
11-22-2000
Judith A. Morano, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Judith A. Morano v. U.S. Department of the Treasury
05A01203
November 22, 2000
.
Judith A. Morano,
Complainant,
v.
Lawrence H. Summers,
Secretary,
Department of the Treasury,
Agency.
Request No. 05A01203
Appeal No. 01A02726
Agency No. 00-3046
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Judith
A. Morano v. U.S. Department of the Treasury, EEOC Appeal No. 01A02726
(July 24, 2000).<1> EEOC Regulations provide 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. See 29 C.F.R. � 1614.405(b).
In her formal complaint, complainant claims that she was subjected
to discrimination on the bases of sex, age, and reprisal when her
supervisor, the District Counsel, issued her a counseling memorandum
dated August 27, 1999, addressing her purported substandard performance
during a one month detail. In its final decision, the agency dismissed
the complaint pursuant to 29 C.F.R. � 1614.107(a)(5) on the grounds
that it was merely a preliminary step to taking a personnel action.
Specifically, the agency found that the memorandum had not been used in
an official personnel action, and that the District Counsel maintained
the only copy, so that complainant had suffered no harm.
On appeal, complainant argued that she had been harmed by the memorandum
because it was used to reduce two provisional performance evaluations,
requiring her to challenge each one to have it upgraded. Complainant also
asserted that the District Counsel told her the memorandum would be used
to lower her May 2000 evaluation, and she expressed concerns that it could
be used in variety of ways against her interests in the agency's current
reorganization, noting that her position had already been abolished.
Complainant further argued that the District Counsel did not issue the
memorandum to provide counseling, but as a reprimand in reaction to her
complaints about being forced to work in the vicinity of a co-worker
with violent tendencies during the one month detail.
In responding to the appeal, the agency again argued that the memorandum
was not a personnel action, and also that the harms identified by
complainant on appeal were merely speculative.
In the previous decision, the Commission determined that complainant
had stated an actionable claim of discrimination. Specifically, the
Commission found that the memorandum harmed complainant because it was
more in the nature of a reprimand than a counseling memorandum. Also,
the Commission determined that complainant's identified harms were not
speculative, noting her need to challenge the two provisional evaluations,
and the District Counsel's statement that the memorandum would be used to
lower her May 2000 evaluation. Additionally, the Commission found that
because the memorandum was �memorialized� by virtue of being maintained by
the District Counsel, it was not merely a preliminary personnel action.
For these reasons, the Commission reversed the agency's dismissal of
the instant complaint, and ordered the agency to accept and investigate
complainant's claim.
In its request for reconsideration, the agency avers that on August
22, 2000, the District Counsel destroyed all copies of the counseling
memorandum, both his own and one in complainant's personnel file.
The agency also asserts that all interim �recordations of performance�
both positive and negative, for the appraisal period ending May 8, 2000,
were destroyed. The agency also contends that the counseling memorandum
did not affect complainant's May 2000 appraisal. To support these
statement's, the agency submits an unsworn statement by the District
Counsel, attesting to each. The agency then argues that because these
actions constitute the full relief to which complainant would have been
entitled to if she had prevailed in her claim, the complaint is now moot.
The agency argues that this is �new and material evidence� sufficient
to grant its request for reconsideration and to reverse the previous
decision.
As noted above, under 29 C.F.R. � 1614.405(b), the Commission must
reconsider any previous decision when the moving party demonstrates that
the previous decision contained a clearly erroneous interpretation of
material fact or law, or that it will have a substantial impact on the
policies, practices, or operations of the agency. In this case the agency
does neither, instead pointing to �new and material evidence� consisting
of actions taken subsequent to the issuance of the previous decision.
Under the Commission's pre- November 9, 1999, regulations, a request
for reconsideration could be granted upon submission of new and material
evidence. However, under the Commission's current regulations, submission
of �new and material evidence�is no longer among the criteria considered
by the Commission when determining whether reconsideration is mandated.
Although the Commission may, in its discretion, always reconsider a
previous decision for any reason, including the submission or new and
material evidence, we find no compelling reason to do so in this case,
for the reasons set forth below.
First, we find that the agency's destruction of the counseling memorandum
and complainant's performance evaluations does not render her complaint
�moot,� pursuant to 29 C.F.R. 1614107(a)(5), because complainant may be
entitled to compensatory damages. The record reveals that complainant has
been inconvenienced numerous times in her attempts to administratively
address the issuance of the counseling memorandum, and the many related
problems it created, and she describes management responses which were
personally disturbing. See Glover v. U.S. Postal Service, EEOC Appeal
No. 01930696 (December 9, 1993). It does not appear that the agency
considered the issue of compensatory damages when exclaiming that it
had rendered complainant's complaint moot by destroying documents.
Second, as noted by complainant in her response to the agency's request
for reconsideration, the agency submits only an unsworn statement from
the District Counsel, raising the question of the reliability of the
statement. Also, we note that the agency states that it destroyed two
separately maintained copies (one in complainant's personnel file, the
other by the District Counsel) of the counseling memorandum, but yet in
the appellate record the agency stated that there was only one copy of
the memorandum, maintained only by the District Counsel. We find that
this inconsistency further raises doubts about the reliability of the
agency's statements in its request for reconsideration.
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. 01A02726 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.
As set forth in the previous decision, the agency's dismissal of the
instant complaint is REVERSED and the case is REMANDED to the agency
for processing in accordance with the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant 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. �� 1614.407 and 1614.408. 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
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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 22, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
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.