05970573
03-04-1999
Ruth L. Morrow, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Ruth L. Morrow, )
Appellant, )
)
v. ) Request No. 05970573
) Appeal No. 01965878
John H. Dalton, ) Agency No. 94-00181-029
Secretary, )
Department of the Navy, )
Agency. )
___________________________________)
GRANTING OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On March 7, 1997, Ruth L. Morrow, through her representative, (hereinafter
referred to as the appellant) timely initiated a request to the Equal
Employment Opportunity Commission (Commission) to reconsider the decision
in Ruth L. Morrow v. John H. Dalton, Secretary, Department of the Navy,
EEOC Appeal No. 01965878 (February 3, 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 that 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
set forth herein, appellant's request is granted.
ISSUE PRESENTED
Whether the previous decision properly dismissed appellant's appeal of
Agency Case No. 94-00181-029 as untimely and whether the agency properly
dismissed portions of appellant's complaint for failure to state a claim
and for failure to raise matters with the EEO Counselor.
BACKGROUND
The previous decision herein found appellant's appeal, filed through her
attorney on July 31, 1996, to be untimely. In doing so, that decision
stated that a certified mail return receipt in the record indicated that
appellant's attorney had received the agency's final decision, which
dismissed portions of appellant's complaint Agency Case No. 94-00181-029
on procedural grounds as of June 3, 1996. The decision noted appellant's
attorney had represented that his office received the FAD on July 2, 1996,
but found that the record did not support this contention. In her request
for reconsideration,<1> appellant's attorney asserts that the agency has
confused the dates on appellant's present appeal, with another appeal
filed at a later date. In support of this contention, she submits a copy
of a June 27, 1996 letter in which she appealed the agency's decision
in Agency Case No. 95-00181-036. The agency did not submit a response
to appellant's request for reconsideration. On August 8 and October 22,
1996 and most recently on November 25, 1998, the Commission's Office of
Federal Operations requested the correct and complete complaint file
for Agency Case No. 94-00181-029. By letter dated December 11, 1998,
the agency forwarded the requested case file in this matter.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that
appellant's request for reconsideration meets the criteria of 29
C.F.R. �1614.407(c)(2), in that, upon further examination of the record
herein, it is evident that the previous decision relied upon the
certified receipt for delivery of the final agency decision (FAD) in
Agency Case No. 95-00181-036, not 94-00181-029, the complaint at issue
herein, which appellant referenced in her appeal letter dated July 31,
1996. Since the agency has not presented the correct certified receipt
establishing when appellant's attorney received the agency's FAD in
Agency Case No. 94-00181-029, we will accept her attorney's statement
that it was received on July 2, 1996, rendering her appeal timely filed.
Thus, we will reconsider this matter to find appellant's appeal timely
filed. Turning to the merits of the agency's dismissal, we find that the
agency has produced, after repeated requests, the correct agency case file
for Agency Case No. 94-00181-029. Consequently, we will address the bases
for the agency's dismissal of appellant's complaint below. In its June
26, 1996 FAD, the agency dismissed appellant's formal complaint alleging
race discrimination in the following agency actions: (a) a March 1994
denial of cross training assignment to crafts in other shops; (b) denial
of insulator training; (c) denial of CO-2 blasting training; (d) denial
of PNUC designation to the competitive level of appellant's Sandblaster,
WG-5423-07 position; (e) assignment of dirtier and more difficult jobs
[i.e. work in bilges and tanks]; (f) denial of the opportunity to advance
into a position which would be less subject to a reduction in force when
the agency failed to create a nuclear billet for Sandblasters commensurate
to the one for Painter positions; and (g) subjected to displacement by
white employees from other shops assigned to Shop 71 for cross-training
and performance of blasting work. The agency dismissed allegation (a)
for failure to state a claim, holding that the temporary assignment of
other workers to on-the-job training and blasting work was accomplished
for the purpose of meeting workload and personnel demands in Shop 71 and,
consequently, did not affect appellant or the terms and conditions of her
employment. The agency also dismissed allegations (b)-(f), finding that
allegation (a) was the only matter raised with the EEO Counselor. The
agency indicated that appellant could contact an EEO Counselor if she
wished to pursue these matters further.<2>
Upon review of the bases for the agency's dismissal of the aforementioned
allegations, we find such dismissal erroneous in that allegation (a),
which concerns opportunities for cross training allegedly afforded to
individuals in other shops not of appellant's race, clearly states a claim
under our regulations. The agency's basis for the decision to afford such
training opportunities to other individuals not of appellant's race goes
to the merits of the claim and does not present a procedural basis for
dismissal. With regard to the dismissal of the remaining allegations
(b) through (g), we find that these allegations, which mainly concern
the denial of desirable training and assignments, are clearly like and
related to allegation (a) which involved the denial of cross training and
assignment opportunities. Thus, the agency erred in refusing to process
these related allegations as part of appellant's present complaint.
Based on the foregoing, we remand this complaint to the agency for
investigation and continued processing under our regulations. Since this
is our first decision on the merits of the appeal, reconsideration rights
are afforded to the parties below.
CONCLUSION
After a review of appellant's request for reconsideration, 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), and it is
the decision of the Commission to GRANT this request. The decision of
the Commission in EEOC Appeal No. 01965878 (February 3, 1997) and the
agency's FAD are REVERSED. The agency is directed to comply with the
Order of the Commission set forth below. There is no further right of
administrative appeal from that portion of our decision pertaining to
the timeliness of appellant's appeal of the agency's final decision.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations 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. �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 APPEAL
RECONSIDERATION (M0795)
With regard to that portion of our decision pertaining to the agency's
dismissal of allegations (a) through (g), the Commission may, in its
discretion, reconsider the decision in this case if the appellant or
the agency submits a written request containing arguments or evidence
which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
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:
March 4, 1999
___________________ _____________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant's attorney filed a consolidated request for reconsideration of
the dismissal of the appeals of appellant and seven other appellants. The
requests for reconsideration of the other appellant's decisions present
different factual scenarios and have already been addressed in the
Commission's decisions on those requests.
2While the agency indicated that it was dismissing allegation (g),
it did not indicate the specific basis for such a dismissal.