05990880
11-05-1999
Tiffany Y. Cannon, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Tiffany Y. Cannon, )
Appellant, )
)
) Request No. 05990880
v. ) Appeal No. 01994946
) Agency No. DOT-6-97-6039
)
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
______________________________)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On July 16, 1999, the agency timely initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in Cannon
v. Department of Transportation, EEOC Appeal No. 01994946 (June 14, 1999).
EEOC Regulations provide that the Commissioners may, in their discretion,
reconsider any previous 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 misapplication of established
policy, 29 C.F.R. �1614.407(c)(2); or the previous 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, the agency's
request is DENIED.
ISSUE PRESENTED
The issue presented herein is whether the previous decision was correct
when it reversed the agency's dismissal of several allegations of
appellant's February 12, 1997 complaint.
BACKGROUND
The record indicates that in its letter dated March 27, 1997, the
agency identified the allegations of appellant's complaint as whether
appellant was discriminated against based on race (African American),
color (Black), sex (female), physical disability (ankle impairment),
and in reprisal for prior EEO activity when past two years, she was
continuously subjected to harassment from managerial officials in that:
(1) she was forced to abide by �Order WP 3600" requiring her to work
a schedule other than the one she requested on many occasions; (2) she
was issued a Letter of Reprimand regarding her time and attendance on
December 5, 1996; (3) she was informed that leave requests on voice-mail
were unacceptable; and (4) her request that she be allowed to remain
in the Los Angeles International Airport, Basin Operations Office, as
support to the technicians, OPS Manager and the Area Manager were denied.
On June 27, 1997, the agency issued a final decision dismissing
several allegations in the complaint. Therein, the agency noted that
appellant, in her letter dated April 23, 1997, objected to the identified
allegations, described above, indicating that it failed to include two
other allegations that: (5) the other two Logistics Management Specialist
were FG-9s, while she remained a FG-7 for over two years; and (6) she
was the only African-American female on �an impacted position list.�
Specifically, the agency dismissed allegations (5) and (6) on the grounds
that appellant failed to raise these matters during EEO counseling prior
to filing of the formal complaint. The agency also dismissed allegation
(1) on the grounds that appellant previously filed a grievance raising
the same matter, i.e., the denial of her February 27, 1995 request for
a 4/10 compressed work week, which was later denied.
The previous decision reversed the agency's decision and remanded the
subjected allegations for further processing. Specifically, the previous
decision noted that the complaint was too vague, and ordered the agency
to further clarify the issues thereof through a meeting between appellant
and an EEO Counselor. The previous decision also pointed out the fact
that the agency's complaint file deficient in its lack of relevant
documents to the case at hand. Specifically, the previous decision found
that the agency failed to produce the relevant portion of the collective
bargaining agreement pertaining to a written grievance appellant filed,
including a copy of the grievance and appellant's April 23, 1997 letter,
described above. The previous decision did not specifically discuss
whether appellant failed to bring allegations (5) and (6) to the attention
of an EEO Counselor.
In its request for reconsideration, the agency states that it subsequently
clarified and investigated all of the allegations in the complaint,
including dismissed allegations (5) and (6), due to continuing nature
of the complaint. The agency contends that sending appellant back to
EEO counseling at this point for the purpose of clarifying the issues
of her complaint would be duplicative use of resources and would not
yield new information, given the fact that all of the issues in the
complaint, whether �live� or �background,� were addressed as �live� in
the investigation of the complaint. The agency also submits a copy
of appellant's grievance at issue and the portion of the collective
bargaining agreement which allows a grievant to pursue discrimination
claim under the union grievance procedure or under EEO procedures,
but not both.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence that tends to establish at least one of the criteria of 29
C.F.R. �1614.407(c). The Commission's scope of review on a request
for reconsideration is narrow, and the party's request must contain
specific information, argument, or evidence that meets one of the
referenced criteria. A request for reconsideration is not a form
for renewed appeal. Regensberg v. United States Postal Service, EEOC
Request No. 05900850 (September 7, 1990). It is an opportunity for a
party to submit newly discovered evidence not previously available, to
establish substantive error in the previous decision, not to explain the
exceptional nature of the case at hand. Foley v. United States Postal
Service, EEOC Request No. 05910894 (October 31, 1991); Lyke v. United
States Postal Service, EEOC Request No. 05900769 (September 27, 1990).
Having reviewed the record and submissions of the parties, we find that
the agency's request fails to meet the criteria of 29 C.F.R. �1614.407(c).
However, since the Commission now has a copy of documents which were
not provided on appeal, including a copy of the investigative report
for the complaint herein, in the interest of judicial efficiency, the
Commission will explain its conclusion.
EEOC Regulation 29 C.F.R. �1614.107(d) provides, in part, that the
agency shall dismiss a complaint or a portion of a complaint where the
complainant has raised the matter in a negotiated grievance procedure
that permits allegations of discrimination and �1614.301 indicates that
the complainant has elected to pursue the non-EEO process.
In allegation (1), appellant indicated that she was not allowed to work
the 4/10 alternate work schedule with a start time of 8:00 a.m. to 6:30
p.m. The record contains an undated document wherein appellant further
clarified the subject matter by stating that she was not allowed to work
past 6:00 p.m. under the �Order WP 3600.� Although the agency maintains
that appellant previously filed a grievance regarding the same matter,
the Commission finds that the subject grievance of March 10, 1995, only
involved the denial of appellant's requested 4/10 alternate work schedule,
and not the denial of a start time of 8:00 a.m. to 6:30 p.m. Thus, the
Commission finds that the agency improperly dismissed allegation (1).
Furthermore, we note that the investigative report indicates that the
subject matter was not investigated by the agency.
EEOC Regulation 29 C.F.R. �1614.107(b) provides, in part, that the agency
shall dismiss a complaint or a portion of a complaint that raises a
matter that has not been brought to the attention of a Counselor and is
not like or related to a matter that has been brought to the attention
of a Counselor.
In allegation (5), appellant indicated that she was not promoted to FG-9
grade level. Although the agency maintains that the subject matter,
which was previously dismissed for failure to bring the matter to
the attention of an EEO Counselor, was subsequently investigated, the
investigative report does not support its contention. After a review of
the record, it appears that appellant raised the subject matter during
EEO counseling. Specifically, the EEO Counselor's Report indicates that
appellant requested her grade to be raised to FG-9 as a relief for the
complaint. Furthermore, the agency did not dispute appellant's contention
on appeal that she did raise the subject matter during EEO counseling.
It is noted that the investigative report for the complaint indicates
that allegation (5) was not investigated by the agency.
With regard to allegation (6), concerning appellant's being subjected
to an �impacted position list,� the investigative report indicates that
the matter was investigated by the agency. Although it appears that
the subject matter was improperly dismissed by the agency for failure to
bring the matter to the attention of an EEO Counselor, the matter needs
not to be remanded for investigation as it is already done by the agency.
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 fails to meet the criteria of 29 C.F.R. �1614.407(c)(2), and
accordingly, the Commission denies the agency's request. The decision
in EEOC Appeal No. 01994946 is MODIFIED to affirm the dismissal of
allegation (6). The dismissal of allegations (1) and (5) continues
to be reversed and allegations (1) and (5) are REMANDED for further
processing in accordance with this decision and applicable regulations.
There is no further right of administrative appeal from the decision of
the Commission on this request for reconsideration.
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.
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:
November 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations