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.