Van J. Ross, Appellant,v.William M. Daley, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionJan 15, 1999
05980089 (E.E.O.C. Jan. 15, 1999)

05980089

01-15-1999

Van J. Ross, Appellant, v. William M. Daley, Secretary, Department of Commerce, Agency.


Van J. Ross v. Department of Commerce

05980089

January 15, 1999

Van J. Ross, )

Appellant, )

) Request No. 05980089

v. ) Appeal No. 01971786

)

William M. Daley, )

Secretary, )

Department of Commerce, )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

INTRODUCTION

On October 25, 1997, Van J. Ross (hereinafter referred to as appellant)

initiated a request to the Equal Employment Opportunity Commission

(Commission) to reconsider the decision in Van J. Ross v. William Daley,

Secretary, Department of Commerce, EEOC Appeal No. 01971786 (September 26,

1997), received by appellant on October 1, 1997. EEOC regulations provide

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

Commission 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 a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);

and the 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, appellant's request is granted.

ISSUE PRESENTED

The issue presented herein is whether the previous decision properly

determined that the agency correctly dismissed appellant's alleged

disability as a basis for discrimination in his complaint.

BACKGROUND

The record in this case reveals that appellant filed a formal complaint

alleging that he had been subjected to race (African-American), age (49),

and disability ("ex-offender") discrimination when he was not selected

for employment. During counseling, appellant indicated that he was

told he could not be hired because of his past criminal record. In its

final decision dated November 15, 1996, the agency accepted appellant's

complaint for processing, but limited the bases for discrimination to

race and age. The agency asserted that appellant failed to state a claim

of disability discrimination based upon his status as an ex-offender.

The previous decision affirmed the final agency decision. The previous

decision noted that, in his formal complaint and during EEO counseling,

appellant claimed disability discrimination based only upon his status

as an ex-offender, which was not a recognized disability under the

Rehabilitation Act.

In his request for reconsideration, appellant indicated that he

received treatment from the state Department of Rehabilitative Services.

Appellant included the names of the doctor who treated him, and referenced

a treatment facility.

The agency did not respond to appellant's request for reconsideration.

ANALYSIS AND FINDINGS

As discussed above, the Commission may, in its discretion, reconsider

any previous decision when the party requesting reconsideration submits

written argument or evidence which tends to establish that any of the

criteria of 29 C.F.R. �1614.407(c) is met. In order for a case to be

reconsidered, the request must contain specific information which meets

the requirements of this regulation. For the reasons set forth below,

the Commission grants appellant's request for reconsideration.

EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal

of a complaint which fails to state a claim within the meaning of 29

C.F.R. �1614.103. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R.� 1614.103;

�1614.106(a). The Commission's federal sector case precedent has long

defined an "aggrieved employee" as one who suffers a present harm or loss

with respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (Apr. 21, 1994).

The previous decision correctly noted that appellant's status as an

ex-offender does not state a claim of discrimination within the purview

of the EEOC Regulations. The record, however, shows that appellant

previously sought treatment for an apparent psychological condition.

Specifically, on appeal and in his request for reconsideration, appellant

stated that he sought psychological treatment from 1975 until 1981, and

again in the 1990s. Accordingly, the Commission finds that appellant

has stated a claim of disability discrimination sufficient to warrant

an investigation on the merits of the allegation.<1>

CONCLUSION

After a review of appellant's request for reconsideration, the previous

decision, and the entire record, the Commission finds that appellant's

request meets the criteria of 29 C.F.R. �1614.407(c)(2), and it is

therefore the decision of the Commission to GRANT appellant's request.

The decision in EEOC Appeal No. 01971786 (September 26, 1997) and the

final agency decision are hereby REVERSED. The agency shall comply with

the terms of the Order set forth below. There is no further right of

administrative appeal on a decision of the Commission on this Request

for Reconsideration.

ORDER (E1092)

The agency is ORDERED to process the remanded allegation in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegation within thirty (30) calendar

days of the date the agency receives this decision. 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 the agency receives this decision, 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 acknowledgement to appellant and a copy

of the correspondence that transmits the investigative file and notice

of rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THAT 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.

STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION

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:

JAN 15, 1999

Date Frances M. Hart

Executive Officer

Executive Secretariat

1The decision herein makes no findings regarding whether appellant's

condition constitutes a disability for purposes of the Rehabilitation Act.