Judith A. Morano, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionNov 22, 2000
05A01203 (E.E.O.C. Nov. 22, 2000)

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.