Thomas Moreno, Complainant,v.Richard W. Riley, Secretary, Department of Education, Agency.

Equal Employment Opportunity CommissionJul 24, 2000
05970983 (E.E.O.C. Jul. 24, 2000)

05970983

07-24-2000

Thomas Moreno, Complainant, v. Richard W. Riley, Secretary, Department of Education, Agency.


Thomas Moreno v. Department of Education

05970983

July 24, 2000

Thomas Moreno, )

Complainant, ) Request No. 05970983

) Appeal No. 01956683

v. ) Agency No. ED-9312000

)

Richard W. Riley, )

Secretary, )

Department of Education, )

Agency. )

____________________________________)

DECISION ON REQUEST FOR RECONSIDERATION

On August 13, 1997, the Department of Education (agency) initiated a

request to the Equal Employment Opportunity Commission (the Commission)

to reconsider the decision in Thomas Moreno v. Department of Education,

EEOC Appeal No. 01956683 (July 10, 1997).<1> EEOC regulations provide

that the Commissioners may, in their discretion, reconsider any previous

Commission decision. 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified

and hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.405(b)).

The party requesting reconsideration must submit written argument

or evidence which tends to establish one or more of the following

two criteria: the appellate decision involved a clearly erroneous

interpretation of material fact or law; or the decision will have

a substantial impact on the policies, practices or operations of

the agency. Id. The agency's request meets none of the criteria for

reconsideration, is untimely, and is DENIED. However, the Commission

exercises its discretion to reconsider the matter on its own motion.

ISSUE PRESENTED

The issue presented is whether the previous decision correctly found

that the agency failed to notify complainant of his right to a hearing

before an EEOC Administrative Judge (AJ).

BACKGROUND

Complainant, a GS-13 Criminal Investigator, filed a formal complaint with

the agency on December 7, 1992, claiming that the agency discriminated

against him on the basis of reprisal (prior EEO activity) when, on October

14, 1992, he received a �fully successful� performance rating for the

1991-92 performance year. On April 19, 1993, the agency forwarded

complainant's complaint to the EEOC District Office requesting that

the complaint be joined for hearing with two of complainant's other

EEO cases already scheduled for an EEOC hearing.<2> On July 20, 1993,

the EEOC AJ remanded the complaint to the agency for an investigation.

The agency conducted an investigation and thereafter issued a final

decision finding no discrimination.<3>

In his appeal, complainant requested a hearing before an EEOC AJ in the

interest of fairness in order to supplement the record of appeal because

of conflicting evidence submitted by the agency in its final decision.

The Commission reviewed the record, which did not contain any evidence

that the agency notified complainant of his right to a hearing, and

issued a decision on July 10, 1997, vacating the agency's decision and

remanding the complaint to the agency with the order that complainant

be afforded a hearing before an EEOC AJ.

On request for reconsideration (RTR), the agency claims that on June 23,

1994, it sent complainant notice of his right to a hearing before an

EEOC AJ with a copy of the Report of Investigation. The agency included

with its RTR copies of the notice, dated June 24, 1994, and the certified

return receipt bearing complainant's signature and the date June 25, 1994.

The agency also argues that EEOC regulations provide complainants with

the right to a hearing at the investigative stage of a complaint but

do not provide complainants with the right to request a hearing at the

appellate stage. The agency argues that the previous decision erroneously

interpreted the regulations and that complainant's failure to request a

hearing within the thirty-day time frame established by the regulations

precludes him from belatedly requesting a hearing.

The agency further argues that complainant did not, in fact, assert in

his appeal that the agency failed to notify him of his right to a hearing,

only that he was requesting a hearing in order to supplement the record on

appeal due to conflicting evidence submitted by the agency. The agency

states that it did not submit evidence that it notified complainant of

his right to a hearing at the time of the appeal, because it did not

appear then that complainant was arguing that he was not so notified.

ANALYSIS AND FINDINGS

After a careful review of the record, the Commission finds

that the agency's RTR does not meet the regulatory criteria of 29

C.F.R. �1614.405(b). The Commission has held that a request to reconsider

is not a means to submit evidence that should have been provided before

the Commission's previous decision was issued. Andrews v. Department of

the Navy, EEOC Request No. 05900215 (May 3, 1990).

In the interests of judicial economy, the Commission has, however,

decided to reconsider the previous decision on its own motion. The

previous decision ordered the agency to forward complainant's complaint

to the appropriate EEOC District Office for the assignment of an AJ

to conduct a hearing in this matter. We find that the agency complied

with EEOC regulations on June 24, 1994, and so notified complainant of

his right to a hearing. We further find that complainant failed to elect

at that time to pursue a hearing and that the agency, therefore, issued

a final decision. Pursuant to EEOC Regulation 29 C.F.R. � 1614.108(f)

complainant is not entitled to request a hearing beyond the thirty days

allowed.

The Commission finds that the agency erred in finding in its final

decision that complainant failed to state a prima facie case of

discrimination based on reprisal because he did not prove a casual

connection between the prior EEO activity and the adverse action.

The agency stated that complainant's prior EEO complaint was filed in 1990

and the performance rating complained of was issued in October 1992, and

that the time span between the two was too long to establish the required

casual connection. The Commission, however, finds a casual connection

based on closeness in time between the events, noting that complainant's

prior EEO complaint, while filed in 1990, was being processed through

April 19, 1993, the date on which the agency forwarded the current

complaint to the EEOC District Office for consolidation with the prior

complaints awaiting a hearing. Thus, complainant establishes a prima

facie case of discrimination.

The Commission finds, however, that the agency articulated legitimate,

nondiscriminatory reasons for the performance rating; namely, that

complainant's work did not merit a higher rating; that complainant did

not investigate complex cases as expected based on his grade level and

seniority; and did not initiate cases as directed by the supervisor

in an appraisal given during the same year. The Commission finds that

complainant failed to show that the reasons articulated were a pretext

for discrimination.

CONCLUSION

After a review of the 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. �1614.405(b),

and it is the decision of the Commission to deny the request. The

Commission, however, has decided to reconsider the decision in EEOC

Appeal No. 01956683 (July 10, 1997) own its own motion, pursuant to

29 C.F.R. �1614.405(b). The previous decision of the Commission in

Appeal No. 01956683 (July 10, 1997) which ordered the agency to forward

complainant's complaint to the EEOC District Office for assignment

of an AJ to conduct a hearing on this matter is hereby REVERSED. The

agency's final decision is AFFIRMED. Because the merits of the matter

are addressed for the first time in this decision, the parties are being

given the right to request reconsideration of this decision.

STATEMENT OF RIGHTS

RECONSIDERATION (M0300)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish 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.

Requests to reconsider, with supporting statement or brief, MUST BE FILED

WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR

DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF

RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).

All requests and arguments must 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 timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.604). The request or opposition must

also include proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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. 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. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

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:

July 24, 2000

_________________________________

Date Frances M. Hart

Executive Officer

Executive Secretariat

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________ __________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2The record contains a letter dated April 19, 1993, from the agency's

Chief, Complaints Analysis and Conciliation Unit, EEO Office to

complainant informing him that, per their recent phone conversation,

the agency forwarded his complaint to the EEOC District Office requesting

that it be joined with his other two complaints.

3The agency found that complainant failed to establish a prima facie

case of discrimination based on reprisal because he failed to show

a casual connection between his prior protected activity, occurring

in 1990, and the current adverse action complained of, occurring in

October 1992. The agency further found that, assuming arguendo, that

complainant established a prima facie case, the agency articulated

legitimate, nondiscriminatory reasons for the performance rating;

namely that the rating supervisor averred that complainant met his

performance standards but did not exceed the performance standards as

warranted to rate a higher rating; that complainant was mostly handling

less complex cases with small dollar amounts; that, as a senior GS-13

Investigator, complainant was expected to perform more complex work;

that the supervisor wrote on complainant's performance appraisal during

the year that complainant would explore more avenues for opening complex

cases; and that complainant did not initiate complex cases on his own. The

agency found that complainant failed to show that the articulated reasons

were a pretext for discrimination.