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former full-time EEO counselor, was unilaterally rescinded by the Office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