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Agency FAD overturned by McGivern citation

civilrightsfed by civilrightsfed
February 4, 2020
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Mary S. Reid,     )

Appellant,    )

)  Request No. 05970705

v.     )  Appeal  No. 01964777

)  Agency  No. 96-63-0118

William M. Daley,     )

Secretary,     )

Department of Commerce,   )

Agency.     )

)

DECISION ON REQUEST FOR RECONSIDERATION

On April 21, 1997, the Department of Commerce (hereinafter referred

to as the agency) timely initiated a request to the Equal Employment

Opportunity Commission (the Commission) to reconsider the decision in

Mary S. Reid v. William M. Daley, Secretary, Department of Commerce,

EEOC Appeal No. 01964777 (March 19, 1997).  The agency received

the decision on March 24, 1997.  EEOC regulations provide that

the Commissioners may, in their discretion, reconsider any previous

decision.  29 C.F.R. §1614.407(a).  A party requesting reconsideration

must submit written argument or evidence which tends to establish one or

more of the following 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); the decision is of such

exceptional nature as to have substantial precedential implications,

29 C.F.R. §1614.407(c)(3).  For the reasons that follow, the agency’s

request is denied.  Nevertheless, the Commission will exercise its

discretion and reconsider the previous decision on its own motion.

The issue presented is whether the previous decision properly affirmed

the dismissal of four allegations in appellant’s complaint for untimely

contact with an EEO counselor and remanded four allegations in appellant’s

complaint for further processing.

Appellant sought counseling on January 11 and filed a formal complaint

on March 6, 1996 (Complaint 96-63-0118), alleging discrimination based

on race (black), sex, age (42), and reprisal.  The agency issued a final

agency decision (FAD) on April 26, 1996.

In her complaint, appellant alleged:

(1) between February and March 1995, Supervisory Geographers deliberately

and knowingly provided incorrect and misleading information to trainees

during the job training qualification phase which resulted in some

trainees failing the exam, and if they failed, they were reassigned

or terminated;

(2) she was denied the selective training and preferential treatment

that was afforded other co-workers that resulted in their promotions

and advancement within the agency;

(3) she was denied promotional opportunities by agency officials, in

that, (a) on April 7, 1995, an agency official informed her that she

was not qualified for a Grade 4 Cartographic Aide or the Grade 3 and 4

Geographic Assistant positions because she did not pass the OPM tests;

(b) she was not considered for the Lead Geographic Assistant position

and an unqualified younger female liked by management was selected;

(c) in June 1995, she was not selected for the position of Supervisory

Survey Statistician, GS-7; and (d) she was seldom, if ever, informed

of the status of her applications nor given specific reasons for her

non-selections.

(4) she was repeatedly given incorrect, misleading, inconsistent, and

conflicting information by supervisors and management officials in order

to deny her requests to reclassify her position;

(5) she was denied reassignment and transfer opportunities within

the agency;

(6) promotional vacancies, reassignments and grade reclassifications

primarily have been given to Caucasian males between the ages of 28 to

30 years;

(7) a “hangman’s noose” was hung in the Geography room during the period

of time that the EEO counselor was interviewing employees on issues

raised by appellant in counseling;

(8) in the Geography Division, only Caucasian employees were awarded

certificates and monetary compensation as a result of their annual

performance evaluations; and

(9) she was held to a different production standards than other

Cartographic Aides.

The agency’s FAD accepted Issue (4), dismissed Issues (1)-(3) and

(5) for untimely contact with an EEO counselor, and dismissed Issues

(6)-(9) for failure to bring them to the attention of an EEO counselor.

On appeal, the previous decision affirmed the agency’s dismissal of Issues

(1)-(3) and (5) for untimely EEO contact but ordered the agency to offer

appellant an opportunity for counseling with regard to Issues (6)-(9).

The agency has filed a request for reconsideration (RTR) pointing out that

its FAD had directed appellant to seek EEO counseling on Issues (6)-(9).

Appellant has submitted comments in response that provide documentation

showing that she pursued EEO counseling and filed  complaints for Issues

(6)-(9).  Appellant also requests consolidation of her several complaints

for hearing.

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).  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).  Nevertheless, the Commission reconsiders

the previous decision on its own motion.

Issues (6)-(9)

According to documents submitted by appellant, Issues (6)-(9) have

been counseled and complaints are pending before the agency.  Appellant

contacted an EEO counselor on February 12, 1996, with regard to Issue

(7) and filed Complaint No. 96-63-0178 on March 24, 1996; appellant

contacted an EEO counselor on May 10, 1996, with regard to Issues (6)

and (8)-(9) and filed a formal complaint on November 15, 1996 (Complaint

No. 96-63-0345).  Given this present posture, it is now unnecessary

to direct the agency to offer appellant an opportunity for counseling.

For this reason, we vacate that portion of our previous decision that

remanded those issues to the agency.<1>

Appellant also requests consolidation of her three complaints.  Inasmuch

as her complaints raise events similar in time, issue, and location, we

find that consolidation is warranted.  If it has not already done so,

we direct the agency to consolidate them for processing to the extent

possible.

Issues (1)-(3) and 5

On appeal, the previous decision considered whether these allegations

and Issue (4) stated a continuing violation.  The decision, finding

that each event had a degree of permanence which should have triggered a

suspicion of discrimination such that appellant should have contacted an

EEO counselor, held that these allegations did not establish a continuing

violation.  Thus, the previous decision agreed with the agency that Issues

(1)-(3) and (5) were properly dismissed.

We find, however, that the analysis in the previous decision ignores

the “pattern” aspect of appellant’s allegations.  See Ferguson

v. Department of Justice, EEOC Request No. 05970792 (March 30, 1999),

Meaney v. Department of the Treasury, EEOC Request No. 05940169 (November

12, 1993).  The Commission has held that framing and addressing issues

in a complaint as individual and distinct episodes lessens the impact of

appellant’s several allegations and fragments them into separate parts,

ignoring any underlying claim of ongoing discrimination.  See Manalo

v. Department of the Navy, EEOC Requests No. 05970255 and 05970255

(June 1, 1998).

The time requirement for contacting an EEO counselor may be waived

when the complainant alleges a continuing violation, that is, a series

of related discriminatory acts, at least one of which falls within the

applicable time period.  See, McGivern v. USPS, EEOC Request No. 05901150

(December 28, 1990).  A continuing violation may occur where the alleged

discriminatory actions are interrelated by a common nexus or theme.  Where

a nexus exists, appellant will have established a continuing violation

and the agency would be obligated to “overlook the untimeliness of the

complaint with respect to some of the acts” challenged by appellant.

Scott v. Claytor, 469 F. Supp. 22, 26 (D.D.C. 1978).

The remaining allegations and Issue (4) address a claim that the agency

discriminated against appellant by denying her opportunities with regard

to training, transfer and promotion.  Further, even though some of these

claims fall outside of the 45-day period prior to appellant’s contact

with an EEO counselor, their connection to the timely claim in Issue

(4) renders them part of a continuing violation.  On remand, therefore,

we will direct the agency to investigate Issues (1)-(5) as a continuing,

ongoing claim of discrimination, except as stated below.

CONCLUSION

After a review of the agency’s request for reconsideration, the

appellant’s reply thereto, the previous decision, and the entire record,

the Commission finds that the agency’s request fails to meet any of

the criteria of 29 C.F.R. §1614.407(c).  It is therefore the decision

of the Commission to deny the agency’s request.  On its own motion, the

Commission reconsiders the previous decision, and upon reconsideration,

vacates that portion of the previous decision that remanded Issues

(6)-(9) to the agency and reverses the previous decision with regard to

its finding that Issues (1), (2), (3) and (5) were properly dismissed.

There is no further right of administrative appeal on a decision of the

Commission on a Request for Reconsideration.  The agency is directed to

comply with the Order, below.

ORDER

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 acknowledgement 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.

STATEMENT OF APPELLANT’S 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:

04-22-99

Date                            Frances M. Hart

Executive Officer

Executive Secretariat

1Nevertheless, we hold that the previous decision did not err in its

remand of Issues (6), (8), and (9) to counseling.  The agency failed to

indicate that appellant had, in fact, sought EEO counseling with regard

to these issues.

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