Tiffany Y. Cannon, Appellant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionNov 5, 1999
05990880 (E.E.O.C. Nov. 5, 1999)

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