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.
