Ora L. Batiste, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Domestic Dependent Elementary and Secondary Schools), Agency.

Equal Employment Opportunity CommissionOct 14, 1999
05990816 (E.E.O.C. Oct. 14, 1999)

05990816

10-14-1999

Ora L. Batiste, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Domestic Dependent Elementary and Secondary Schools), Agency.


Ora L. Batiste v. Department of Defense

05990816

October 14, 1999

Ora L. Batiste, )

Appellant, )

) Request No. 05990816

v. ) Appeal No. 01980895

) Agency No. 97-EKYKX005

William S. Cohen, )

Secretary, )

Department of Defense, )

(Domestic Dependent Elementary )

and Secondary Schools), )

Agency. )

__________________________________)

DENIAL OF REQUEST FOR RECONSIDERATION

INTRODUCTION

On June 29, 1999, the Department of Defense (the agency) timely initiated

a request to the Equal Employment Opportunity Commission (the Commission)

to reconsider the decision in Ora L. Batiste v. William S. Cohen,

Secretary, Department of Defense, Domestic Dependent Elementary and

Secondary Schools, EEOC Appeal No. 01980895 (October 8, 1998).<1> 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); 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 stated below, the agency's

request is denied.

ISSUE

The issue presented is whether the agency's request for reconsideration

satisfied the requirements of 29 C.F.R. �1614.407(c).

BACKGROUND

On April 24, 1997, appellant initiated contact with an EEO counselor.

Informal efforts to resolve her concerns were unsuccessful. On August

25, 1997, she received a Notice of Final Interview, informing her that

she had fifteen days from the date of its receipt to file a timely

complaint. On September 11, 1997, appellant filed a formal complaint,

alleging that she was the victim of unlawful employment discrimination

on the bases of sex and disability. On September 29, 1997, the agency

issued a final decision, dismissing appellant's complaint on the grounds

that it was untimely filed.

In her appeal statement, appellant argued that on August 28, 1997,

she informed her EEO counselor that there was no formal complaint form

in the documents she received on August 25, 1997; and that her husband

had unsuccessfully attempted to obtain a copy of the complaint form for

her. According to the appellant, the EEO counselor mailed the complaint

form to her, and that she received it on August 29, 1997. Appellant

argued that the EEO counselor "assured [her] that the delay of the form

would not be counted against the 15 days because she forgot to attach

the form to the report." The previous decision, in light of appellant's

contention that she was told that the 15-day time limitation period

would be tolled pending her receipt of the complaint form, vacated

the agency's final decision and remanded appellant's complaint for a

supplemental investigation.

In its request to reconsider (RTR), the agency argued that it was

not accorded fair treatment or due process because neither appellant

nor the Commission provided it with a copy of appellant's appeal

statement. Consequently, the agency requested that the Commission provide

it with a complete copy of appellant's appeal statement, and issue a

new decision providing it with sixty (60) days, from its receipt of

appellant's appeal statement, to supplement the record with evidence

concerning appellant's claim that the time limitation period should

be extended. Appellant did not respond to the agency's request.

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). A reconsideration request is not merely a form of a

second appeal. Regensberg v. USPS, 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. United States Postal Service,

EEOC Request No. 05900769 (September 27, 1990).

After a careful review of the record, the Commission finds that

the agency's request does not meet the regulatory criteria of 29

C.F.R. �1614.407(c). The agency has not presented new and material

evidence, nor has it established that any substantive legal or factual

error, or misapplication of established policy or precedent exists

in the previous decision. In addition, the agency has not shown that

the previous decision was of such an exceptional nature as to have

substantial precedential implications. Accordingly, it is the decision

of the Commission to deny the RTR.

Likewise, we find no other reason that would justify reconsidering the

previous decision. At present, the agency is on notice with respect

to the contents of appellant's appeal statement. Also, the previous

decision already directed the agency to supplement the record with

evidence regarding whether appellant was informed that, pending her

receipt of a complaint form, the fifteen-day time limitation period

would be extended. Thereafter, the agency was ordered to issue a new

final decision dismissing appellant's complaint or notifying her that

the agency was processing her complaint. Based on the above, we are

unable to find that the agency has been harmed by not receiving a copy

of appellant's appeal statement.<2> A determination has not been made

with respect to appellant's claim. Prior to any determination being made

by this Commission, the agency will have ample opportunity to investigate

appellant's claim, to supplement the record, and to issue a new decision

that fully addresses this matter.

CONCLUSION

Accordingly, the agency's RTR is DENIED. The decision in EEOC

Appeal No. 01980895 (October 8, 1998) remains the Commission's final

decision in this matter. The agency shall comply with the Order in

our previous decision, as MODIFIED below. There is no further right of

administrative appeal from a decision of the Commission on a request

for reconsideration.

ORDER

The agency is ORDERED to conduct a supplemental investigation, which

shall include the following actions:

The agency shall supplement the record with evidence regarding whether

appellant was informed that the fifteen-day limitation period for filing

a timely complaint would be extended, pending appellant's receipt of an

EEO complaint form, which evidence should include, but is not limited

to, an affidavit from the EEO Counselor in Pensacola, Florida, whom

appellant identified as the party who informed her that the limitation

period would be extended.

After completion of the supplemental investigation, the agency shall issue

a new final decision or notify appellant that the agency is processing

her complaint. The supplemental investigation and issuance of the final

decision or notice of processing must be completed within ninety (90)

calendar days of the date this decision becomes final.<3> A copy of the

new final agency decision and/or a copy of the notice of processing

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. �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.

STATEMENT OF RIGHTS - ON RECONSIDERATION

RIGHT TO FILE A CIVIL ACTION (R0993)

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. 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. 14, 1999

____________ ___________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

1The record contains a certified mail return receipt that indicates the

previous decision was mailed to the agency's Human Resources Office in

Pensacola, Florida, and was received on October 15, 1998. We note, however

that, by letter dated April 22, 1998, the Commission was informed that the

Pensacola office was no longer the servicing EEO office for the agency and

that future correspondence should be forwarded to an office located in

Arlington, Virginia. Since the previous decision was erroneously mailed to

an office that was no longer processing the agency's EEO matters, we find

that the agency has provided an adequate justification for extending the

30-day time limitation period. See 29 C.F.R. �1614.604(c).

2The determination above should not be interpreted by appellant as

approval of her failure to provide the agency with a copy of her appeal

statement. EEOC Regulation 29 C.F.R. �1614.403(d) provides that "any

statement or brief in support of [an] appeal must be submitted . . . to

the agency within 30 days of filing the appeal."

3The previous decision only allotted thirty days to the agency to complete

the supplemental investigation and to issue either a final decision or

a notice of processing. We, on our own motion, find that ninety days

is a more reasonable period of time.