0520120458
11-16-2012
Shirley Myers, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Shirley Myers,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Request No. 0520120458
Appeal No. 0120120759
Agency No. ARBELVOIR11JUL03347
DENIAL
The Agency timely requested reconsideration of the decision in Shirley Myers v. Department of the Army, EEOC Appeal No. 0120120759 (May 1, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates that: (1) the appellate decision involved a clearly erroneous interpretation of material fact or law; or (2) the appellate decision will have a substantial impact on the policies, practices, or operations of the agency.
See 29 C.F.R. � 1614.405(b).
ISSUE PRESENTED
The issue presented is whether the Agency met the criteria for reconsideration by demonstrating that the appellate decision: (1) involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency.
BACKGROUND
In the underlying case, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American) and color (black) when: (1) on or about April 18, 2011, she received a letter stating that the Agency had indefinitely suspended her privileges to see patients at Fort Belvoir; and (2) since February 2011, she has been subjected to harassment by Agency management including being denied training and adequate work space to see patients.
The Agency issued a final decision dismissing Complainant's complaint pursuant to
29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Specifically, the Agency found that Complainant's July 26, 2011 EEO Counselor contact occurred more than 45 days after the last alleged discriminatory event on April 18, 2011.
The appellate decision reversed the Agency's dismissal and remanded Complainant's complaint for further processing. The appellate decision found the following facts: (a) on April 17, 2011, Complainant contacted an EEO Counselor (C1) regarding her claims of discrimination, but C1 informed her that he could not assist her and advised her to contact the staffing firm with her concerns; (b) on May 15, 2011, Complainant contacted the staffing firm and alleged discrimination by Agency management; (c) on June 17, 2011, when Complainant asked about the status of her complaint, she learned that the staffing firm did not investigate the matter or refer the matter to the Agency; and (d) on July 14, 2011, Complainant contacted another EEO Counselor (C2) to pursue the matter. The appellate decision relied on Complainant's February 13, 2012 affidavit in finding the facts surrounding Complainant's contact with C1. Based on the above facts, the appellate decision found that sufficient reasons existed for extending the 45-day time limit for contacting an EEO Counselor. Among other things, the appellate decision found that Complainant acted reasonably in first lodging her complaint with the staffing firm because C1 had advised her to do so.
ARGUMENTS ON RECONSIDERATION
In its request for reconsideration, the Agency contended that the appellate decision involved a clearly erroneous interpretation of material fact or law. As part of its request, the Agency submitted the following new evidence: (i) an April 15, 2011 "Information Inquiry Summary" form, completed and signed by C1, indicating that he met with Complainant on April 15, 2011 and provided her with general information about the EEO complaint process, including the 45-day time limit; and (ii) a May 21, 2012 affidavit from C1 stating that, at the April 15, 2011 meeting, he reminded Complainant about the 45-day time limit and did not tell her that the EEO Office could not assist her.
First, the Agency argued that Complainant's appeal was not ripe for a decision when the appellate decision was issued. Specifically, the Agency asserted that it did not receive a copy of Complainant's affidavit before the appellate decision was issued; it only became aware of the affidavit when the appellate decision referenced the document; and it did not have an opportunity to respond to the contents of the affidavit. Second, the Agency argued that the Commission should consider the new evidence because it submitted the evidence within 30 days of its May 16, 2012 receipt of Complainant's affidavit. Third, the Agency argued that, when considering all the evidence, the appellate decision erred in finding that C1 informed Complainant on April 17, 2011 that he could not assist her and advised her to contact the staffing firm with her concerns.
In opposition,1 Complainant contended that the Agency's request did not meet the standard for reconsideration. Specifically, Complainant argued that, when considering all the evidence, she exhibited a clear intent to begin the EEO process within the 45-day time limit, but was deterred from doing so through no fault of her own. In addition, Complainant argued that her May 15, 2011 contact with the staffing firm, which occurred after she met with C1, is further evidence that C1 told her to deal solely with the staffing firm. Finally, Complainant argued that the record does not clearly indicate that C1 notified her of the 45-day time limit.
ANALYSIS AND FINDINGS
Upon review, we find that the Agency's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Specifically, the Agency failed to show that the appellate decision clearly erred in finding that sufficient reasons existed to extend the 45-day time limit for contacting an EEO Counselor.
The appellate decision found that Complainant acted reasonably in first lodging her complaint with the staffing firm because C1 had advised her to do so at a meeting in April 2011. We find that the Agency did not show that the appellate decision, based on the evidence available to it at the time, clearly erred. Moreover, even when considering the new evidence, we find that the Agency did not show that the appellate decision clearly erred. Specifically, we find that the new evidence fails to conclusively show that C1 did not advise Complainant to contact the staffing firm. Regarding C1's May 21, 2012 affidavit, we find that it may dispute, but does not disprove, the statements in Complainant's affidavit about what C1 told her. Regarding the April 15, 2011 "Information Inquiry Summary" form, we find that it does not irrefutably support C1's version of the facts over Complainant's version of the facts, as the form was completed by C1 and does not contain Complainant's signature.2
We emphasize that "[t]he burden is on the requesting party to make a substantial showing that its request meets one of the two prerequisites for a granting of reconsideration." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Ch. 9, � VII.B.2 (Nov. 9, 1999). We find that the Agency has not met that burden.
CONCLUSION
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120120759 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant 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 Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant 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 (K0610)
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 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant 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. �� 1614.407 and 1614.408. 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) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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 within ninety (90) calendar days from the date that you receive this decision. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____11/16/12_____________
Date
1 Complainant sent the affidavit to the Commission on February 14, 2012. Complainant explained that she was under the mistaken belief that the Commission would send the affidavit to the Agency after it approved the affidavit for submission. We reiterate to Complainant that the parties are responsible for serving each other copies of any documents filed on appeal.
See 29 C.F.R. � 1614.403.
2 In contrast, we note that the July 26, 2011 "Information Inquiry Summary" form documenting the meeting between C2 and Complainant contains the signatures of both C2 and Complainant.
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0520120458
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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