05970584
10-08-1998
Mary S. Binseel, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Mary S. Binseel v. Department of the Army
05970584
October 8, 1998
Mary S. Binseel, )
Appellant, ) Request No. 05970584
) Appeal No. 01964879
v. ) Agency No. 96-04G0100 )
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
________________________________)
GRANT OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On March 11, 1997, Mary S. Binseel (hereinafter referred to as
the appellant) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision in
Binseel v. Department of the Army, EEOC Appeal No. 01964879 (February
11, 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 or regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and 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 herein, appellant's request is granted.
ISSUE PRESENTED
Whether a per se violation of the EEOC Regulations prohibiting
interference with protected EEO activity has occurred.
BACKGROUND
In a complaint dated April 12, 1996, appellant alleged that the agency
discriminated against her on the bases of her sex and reprisal when:
(1) the Associate Director for Plans, Programs and Budget told her that
he did not believe she was non-promoted on the basis of her sex, that
she should not have filed an EEO complaint, and that the only result of
filing an EEO complaint would be that a lot of damage would be done; (2)
and, the agency changed appellant's position description and assignment
of duties.
In a final decision dated May 2, 1996, the agency dismissed allegations
1 and 2 for failure to state a claim and for stating the same claim
as a previously filed complaint, respectively. Appellant appealed the
agency's final decision. In her appeal, appellant argued that the agency
should not have dismissed allegation 1 because the Commission in Jasper
v. USPS, EEOC Request No. 05920370 (August 7, 1992), held that expressed
hostility to the EEO complaint process, such as the Director's comment
in this case, is "discrimination per se." In response to appellant's
appeal, the agency argued that the EEOC regulation (29 C.F.R. �1613.261)
relied on by the Commission in Jasper no longer exists.
The previous decision affirmed the agency's dismissal of allegations
1 and 2. In reaching this decision with respect to allegation 1, the
agency did not address appellant's argument on appeal. In her request
for reconsideration, appellant requests the Commission to reconsider
its decision with respect to allegation 1 because the previous decision
failed to find that the agency engaged in a per se violation of the EEOC
regulations.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits 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. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
For the reasons set forth below, the Commission finds that appellant's
request meets the statutory criteria for reconsideration and therefore
grants the request. Specifically, the Commission finds that, although
allegation 1 does not state a claim for individual relief, the statements
made by the Associate Director discouraging appellant from engaging in
EEO activity is a per se violation of EEOC regulations.
Although the Associate Director denied telling appellant that the
only result of filing an EEO complaint would be that a lot of damage
would be done, he admitted that he told appellant that filing an
EEO complaint was the wrong way to go about getting a promotion. The
Director's comments clearly were an attempt to discourage appellant from
exercising her right to file an EEO complaint or engage in EEO activity.
The Commission finds, therefore, that the Associate Director's statement
violated the letter and spirit of the EEOC Regulations and evidences
unlawful discrimination per se. The agency has a continuing duty to
promote the full realization of equal employment opportunity in its
policies and practices. EEOC Regulation 29 C.F.R. �1614.101. This duty
extends to every aspect of agency personnel policy and practice in
the employment, development, advancement, and treatment of employees.
29 C.F.R. �1614.102. Agencies shall, among other things, insure
that managers and supervisors perform in such a manner as to insure
a continuing affirmative application and vigorous enforcement of the
policy of equal employment opportunity. 29 C.F.R. �1614.102(5).
Here, the Associate Director's statement, rather than encouraging the
realization of equal employment opportunity in the workforce, served to
have a potentially chilling effect on the ultimate tool that employees
have to enforce equal employment opportunity, the filing of a complaint.
Based on the Commission's duty to insure the integrity of the EEO process
and the undisputed evidence of unlawful action in the instant case,
the previous decision is modified to find that a violation of the EEOC
regulations has occurred. The agency shall, as set forth in the Order
below, take all actions necessary to insure that managers and supervisors
act in accordance with the EEOC regulations and, in particular, refrain
from making comments, such as those made by the Associate Director,
that discourage use of the EEO process.
Therefore, appellant's request to reopen is granted based on the per
se violation of the EEOC Regulations. The agency shall implement the
relief ordered below.
CONCLUSION
After a review of appellant's request to reopen, the agency's response,
the previous decision, and the entire record, the Commission finds that
appellant's request meets the criteria of 29 C.F.R. �1614.407(c)(2).
It is, therefore, the decision of the Commission to Grant her request.
The decision in EEOC Appeal No. 01964879 is MODIFIED to find that the
agency engaged in a per se violation of the EEOC regulations. In order
to remedy its violation of the EEOC Regulations, the agency shall take
the steps contained in the following Order. There is no further right
of administrative appeal from a decision of the Commission on a request
to reopen.
ORDER
The agency is ORDERED to take all actions necessary, including EEO
training, to insure that managers and supervisors act in accordance
with the EEOC regulations and, in particular, refrain from any action
and/or statements which restrain or interfere with the EEO process.
The agency shall, as outlined below, post the attached notice regarding
its commitment to equal employment opportunity. The agency is further
directed to submit a report of compliance to the Compliance Officer,
as provided in the paragraph below entitled "Implementation of the
Commission's Decision." The report shall include supporting documentation
verifying that the corrective action has been implemented.
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. �1614.503 (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. �� 1614.408, 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. �� 1614.408 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. �2000e-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. �1614.410.
POSTING ORDER (G1092)
The agency is ORDERED to post at its Aldelphi, Maryland Army Researh
Laboratory copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
STATEMENT OF APPELLANT'S RIGHTS
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:
Oct. 8, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat