Kathleen R. Loman, Appellant,v.Andrew M. Cuomo, Secretary, Department of Housing and Urban Development Agency.

Equal Employment Opportunity CommissionNov 5, 1999
05991101 (E.E.O.C. Nov. 5, 1999)

05991101

11-05-1999

Kathleen R. Loman, Appellant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development Agency.


Kathleen R. Loman, )

Appellant, )

) Request No. 05991101

v. ) Appeal No. 01990342

) Agency No. 98-16

Andrew M. Cuomo, )

Secretary, )

Department of Housing and )

Urban Development )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

INTRODUCTION

The agency timely initiated a request to the Commission to reconsider

the decision in Loman v. Department of Housing and Urban Development,

EEOC Appeal No. 01990342 (August 4, 1999). 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: 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.

BACKGROUND

Appellant filed a formal complaint alleging discrimination based on

race/color or national origin (Caucasian), sex (female), age (d.o.b. June

23, 1949), and reprisal (prior EEO activity). The agency defined

appellant's allegations as follows:

(1) appellant's first line supervisor proposed to suspend appellant for

five (5) days for being Absent Without Leave (AWOL);

(2) appellant was offered a Community Builder position at the GS-14 level,

rather than at the GS-15 level;

(3) a �Notice of Right to File a Discrimination Complaint,� issued by a

former full-time EEO counselor, was unilaterally rescinded by the Office

of Departmental Equal Employment Opportunity; and,

(4) appellant received a performance evaluation of �Highly Successful�

for fiscal year 1997.

In its final decision, the agency dismissed allegations (1) - (3) for

different procedural defects. Specifically, allegation (1) was dismissed

for alleging a proposed action. Allegation (2) was dismissed for stating

the same claim already pending before the agency. And finally, allegation

(3) was dismissed as a spin-off complaint.

On appeal, appellant challenged the dismissal of allegation (1).

She did not challenge the other two dismissals. She argued that the

agency incorrectly framed the issue which forms the basis of allegation

(1). She claimed that she explained to the EEO counselor that she

was threatened with AWOL and forced to take Leave Without Pay (LWOP)

(emphasis added).

In our previous decision, we ruled that the agency improperly dismissed

allegation (1). Our decision was based upon file information which

indicated that the �. . . allegation regarding the issue of [appellant]

being charged with AWOL for 48 hours. . . .� was discussed. Our decision

was also based upon letters from appellant seeking to clarify the

allegation, being forced to take LWOP for 48 hours.

In its request for reconsideration, the agency contends that our previous

decision involved an erroneous interpretation of law, regulation or

material fact, or a misapplication of established policy. Specifically,

the agency argues that our decision focused on how the allegation should

have been framed based upon statements written by the EEO counselor in the

counselor's report. Agency officials believe that our previous decision

constituted an erroneous interpretation of law, regulation or material

fact, or a misapplication of established policy because, as they see it,

the formal complaint, not the counselor's report, forms the basis of

the complaint. The agency contends further that, on September 1, 1998,

appellant filed another complaint alleging that her supervisor had placed

her on LWOP for 48 hours (the same issue contained within allegation (1)).

To support its contention, the agency provided the Commission with a

copy of the acceptance letter, which indicates that the allegation at

issue here was accepted in response to the complaint filed on September 1.

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 request for reconsideration 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).

The Commission finds that the agency's request for reconsideration

does not meet the regulatory criteria of 29 C.F.R. �1614.407(c).

We reject the agency's notion that our previous decision involved a

substantive error (i.e., relying on the counselor's report instead of

the formal complaint). When ascertaining the substance of an appellant's

allegations, agencies and the Commission are not restricted to information

contained within the formal complaint. Instead, counselor's reports,

letters, and other file documents are just as important when determining

the essence of appellant's allegations. As such, we find that our

previous decision applied correctly EEOC law and precedent and, therefore,

did not contain a substantive error.<1>

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), and it

is the decision of the Commission to deny the request. Our decision in

EEOC Appeal No. 01990342 remains final. There is no further right of

administrative appeal from a decision of the Commission on a request

for reconsideration.

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. 5, 1999

______________ __________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1 To the extent that this decision

renders any allegation contained within the September 1 complaint

duplicative, that allegation should be dismissed pursuant to 29

C.F.R. �1614.107(a) for stating a claim that is pending before or

has been decided by the agency.