05980138
11-04-1999
Margo Prue, Appellant, v. Maj. Gen. Donald C. Hilbert, USA Ret., Director, Soldier's and Airman's Home, Agency.
Margo Prue v. Soldier's and Airman's Home
05980138
November 4, 1999
Margo Prue, )
Appellant, )
) Request No. 05980138
v. ) Appeal No. 01970377
)
Maj. Gen. Donald C. Hilbert, USA Ret., )
Director, )
Soldier's and Airman's Home, )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On November 17, 1997, the Soldier's and Airman's Home (the agency) timely
initiated a request to the Equal Employment Opportunity Commission (the
Commission) to reconsider the decision in Margo Prue v. Maj. Gen. Donald
C. Hilbert, USA Ret., Director, Soldier's and Airman's Home, EEOC
Appeal No. 01970377 (October 10, 1997). 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.
ISSUE PRESENTED
The issue presented herein is whether the previous decision properly
reversed the agency's decision to dismiss an allegation raised in
appellant's complaint on the grounds that the allegation raised therein
had not been brought to the attention of the EEO Counselor, and was not
like or related to the other issues in appellant's complaint on which
she had received counseling.
BACKGROUND
On May 17, 1996, appellant initiated contact with an EEO Counselor.
The EEO Counselor's Report reflects that appellant underwent EEO
counseling on the following matters: an agency official told her that
she resembled "Aunt Jemima;" she was issued a written notice on April
18, 1996, indicating that she had knowingly made false and malicious
statements about the agency official who purportedly referred to her as
"Aunt Jemima;" while on light duty assignment, she was improperly given
an assignment which required repetitive motion and more use of her
hands than was required in her prior assignment; and on May 13, 1996,
an agency official gave a Department of Labor (DOL) nurse a position
description for appellant that she had never seen. In another section of
the EEO Counselor's Report, the EEO Counselor indicated that appellant
alleged that she was harassed by agency officials regarding her race
(Black), sex (female), and physical disability (carpal tunnel syndrome).
Informal efforts to resolve appellant's concerns were unsuccessful.
On July 30, 1996, appellant filed a formal complaint, alleging that she
was the victim of unlawful employment discrimination on the bases of
race, color, sex, disability, and reprisal. Therein, appellant addressed
numerous incidents of alleged discrimination.
On October 3, 1996, the agency issued a final decision. The agency found
that appellant's formal complaint was comprised of fourteen allegations,
which were identified in the following manner:
a. On April 3, 1996, [agency official #1] allegedly threatened you
regarding your statements about him.
b. On April 18, 1996, [agency official #2] gave you a letter of counseling
regarding making false statements about [agency official #1].
c. During April or May 1996, [agency official #3] had the DOL nurse
review a position description regarding your light-duty assignment in
the food service area that you had never seen.
d. As of May 13, 1996, your temporary light-duty assignment required you
to use your hands more than in your position of record, and to engage
in repetitive motion.
e. On July 16, 1996, you were informed that your position was eliminated
due to a Reduction-In-Force (RIF).
f. On November 13, 1995, [agency official #1] allegedly told you that
you resembled "Aunt Jemima."
g. In 1989 or 1990, shortly after his arrival in the Supply Management
Branch, [agency official #1] allegedly commented that "I can bring
monkeys in here and get them to do the work you all do."
h. In 1995, [agency official #1] allegedly made disparaging comments
about your physical disability.
i. [Agency official #4] allegedly made derogatory remarks concerning
women.
j. On May 18, 1995, [agency official #5] placed you on leave restriction.
k. On July 19, 1995, you were suspended for 3 days for making threatening
comments about your Supervisor.
l. [Agency official #1] allegedly asked you if you were going to see your
"shrink."
m. [Agency official #1] allegedly demanded that you sign a letter so he
could change your job description and downgrade you to a GS-04.
n. The Personnel Office does not maintain confidentiality.
The agency accepted allegations (a) - (e) for investigation. The
agency dismissed allegations (f), (g), (h), (j), and (k) for failure to
initiate contact with an EEO Counselor in a timely fashion. The agency
also dismissed allegations (j) and (k) on the alternative grounds that
appellant did not contact an EEO Counselor and that the matters contained
in these allegations were not like or related to the matters for which
appellant underwent EEO Counseling. The agency also dismissed allegation
(j) on the grounds that appellant raised the matter contained therein in
a grievance. Finally, the agency dismissed allegations (i), (l), (m),
and (n) on the grounds that appellant did not contact an EEO Counselor
regarding these allegations.
The previous decision vacated the agency's decision to dismiss allegations
(f), (g), and (h) and remanded these allegations to the agency for further
processing. It affirmed the agency's decision to dismiss allegations (j),
(k), (m), and (n). Finally, it reversed the agency's decision to dismiss
allegations (i) and (l), and remanded these allegations to the agency
for further processing. The previous decision incorrectly stated that
allegation (i) involved agency official #1, rather than correctly stating
that agency official #4 was involved. The previous decision reached its
conclusion on allegation (i), in part, because of the incorrect statement
that agency official #1 was involved in both allegations (a) and (i).
In its request, the agency contends that the previous decision should
be reconsidered, pursuant to 29 C.F.R. �1614.407(c)(2), because the
previous decision "rests on an erroneous interpretation of a material
fact," specifically that agency official #1 made the comments involved
in allegation (i).
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
(RTR) 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 the agency's
RTR does not meet the regulatory criteria of 29 C.F.R. �1614.407(c).
The agency has not demonstrated that the error in the previous decision
was material. We find rather that the previous decision's mistake
concerning which agency official was involved in allegation (i) was
harmless error. Notwithstanding the fact that it was agency official
#4 who was involved in allegations (i), we find that allegation (i)
is still like or related to the matters for which appellant received
EEO Counseling.
In determining whether the incidents described in appellant's amended
complaint and subsequent correspondence are like or related to the
incidents raised in her original complaint, we must consider whether
those later incidents clarify the earlier incidents and could have been
expected to grow out of the original complaint during the investigation.
Scher v. United States Postal Service, EEOC Request No. 05940702 (May 30,
1995). In a similar case, Mitchell v. Department of Veterans Affairs,
EEOC Request No. 05960656 (January 5, 1998), the Commission found
that allegations not brought to the Counselor's attention were like or
related to those that were because the appellant alleged that she was
being subjected to a pattern of on-going discrimination and harassment,
rather than separate incidents or isolated acts of discrimination.
In the instant case, appellant also alleged that she was being subjected
to an on-going pattern of discrimination and harassment, as evidenced
by her statement to that effect in the EEO Counselor's Report and other
statements throughout the record. Based on appellant's characterization
of her complaint, we find that allegation (i) is like or related to
other allegations that she received counseling on which also involved
derogatory comments made by an agency official.
CONCLUSION
After a review of 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 decision
in EEOC Appeal No. 01970377 (October 10, 1997) remains the Commission's
final decision. The agency shall comply with the Order in our previous
decision, as restated below. There is no further right of administrative
appeal from a decision of the Commission on a request to reconsider.
ORDER
The agency is ORDERED to take the following action:
1. The agency is ORDERED to determine whether allegations (f), (g),
and (h) are part of a continuing violation. Thereafter, the agency
shall process the allegation in accordance with the regulations, AS
AMENDED. The agency shall determine whether the allegations constitute
a continuing violation and issue the appropriate notice within thirty
(30) calendar days of the date this decision becomes final.
A copy of the new final decision and/or notice to appellant that her
allegations are being processed must be sent to the Compliance Officer
as referenced below.
2. The agency is ORDERED to process the allegations (i) and (l) in
accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to the
appellant that it has received the remanded allegations within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to appellant a copy of the investigative file and also shall
notify appellant 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 appellant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. s1614.503(a). The appellant 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. ss1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ss1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. s2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See
29 C.F.R. s1614.410.
RIGHT TO FILE A CIVIL ACTION (Q0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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. 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 (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