05970388
03-18-1999
___________________________, Appellant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.
_____________________ v. National Aeronautics and Space
Administration
05970388
March 18, 1999
___________________________, )
Appellant, )
)
v. ) Request No. 05970388
) Appeal No. 01960344
Daniel S. Goldin, ) Agency No. NCN-92-HQS-BO62
Administrator, ) Hearing No. 100-94-7580X
National Aeronautics and )
Space Administration, )
Agency. )
___________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On June 4, 1996, the Estate of ________________, through his
representative (hereinafter referred to as the appellant)<1> timely
initiated a request to the Equal Employment Opportunity Commission
(Commission) to reconsider the decision in _____________ v. Daniel
S. Goldin, Administrator, National Aeronautics and Space Administration,
EEOC Appeal No. 01960344 (May 13, 1996). 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 that 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 denied. However, the Commission
exercises its discretion pursuant to 29 C.F.R. �1614.407(a) to reconsider
the previous decision on its own motion.
ISSUE PRESENTED
Whether the previous decision properly affirmed the agency's final
decision which found that portions of appellant's complaint were no
longer justiciable.
BACKGROUND
In appellant's August 12, 1992 formal EEO complaint, he alleged, inter
alia,<2> that based on his sex (male), age (59) and physical disability
(non-union distal femur), the agency took the following actions: (a) he
was required to submit an Application for Leave, SF-71, for less than one
hour of sick leave, and was required to provide a physician's certificate
for one-day of sick leave; (b) he was denied a career-ladder promotion;
(c) he was denied upgrade opportunities and assigned lower level duties;
(d) the authenticity of his medical condition was investigated; (e)
he was denied a transfer to the Information Systems Office; (f) he
was given a letter regarding the use of sick leave; and (g) the agency
failed to accommodate him with an orthopedic chair for his degenerative
arthritis and back condition. In his formal EEO complaint and in his
investigative affidavit appellant asserted that he had been subjected to
acts of harassment by his supervisors that included the actions cited. He
also claimed, in his complaint, that the agency's acts of harassment
had caused tremendous mental, physical, and financial anguish to him
and his family and requested monetary compensation equivalent to what
he alleged he was being continually denied.
The previous decision herein affirmed the agency's final decision,
which adopted the recommended decision of the EEOC Administrative Judge
(AJ) set forth in findings and conclusions reached without a hearing
pursuant to 29 C.F.R. �1614.109(e). In that decision, the AJ found
that a hearing was unnecessary in this case because allegations a and
c-g either failed to state a claim or were moot due to the appellant's
disability retirement. The AJ further held that appellant failed to
present a prima facie case of discrimination with regard to allegation b.
On appeal, appellant's legal representative asserted that the AJ and the
agency erroneously viewed each of the allegations as isolated instances
of discrimination when they should be viewed together to assess the full
measure of harm appellant suffered.
The previous decision addressed each of the allegations individually,
finding that allegations a and d-g failed to state a claim because, in
each instance, appellant did not allege sufficient harm to render him
aggrieved and there was no relief available in the event he prevailed
on the allegation. The decision further found that allegations a and
c-g were moot, in that given appellant's disability retirement, there
was no relief to which appellant would be entitled and no reasonable
expectation that such conduct could recur. With respect to allegation
b, the decision found that appellant had failed to identify similarly
situated employees outside of his protected groups, (employees at the
end of their career ladders) who had received career ladder promotions
or promotions through accretion of duties.
In his request for reconsideration, appellant asserted that her husband
was persecuted and suffered a gross injustice at the agency. The agency
responds to appellant's request by reasserting the validity of the
specific holdings reached by the previous decision.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that the
appellant's request for reconsideration fails to meet any of the criteria
of 29 C.F.R. �1614.407(c), in that the appellant has not presented new
and material evidence. Nor has appellant raised any arguments which
demonstrate error in the previous decision or a matter with substantial
precedential implications. It is therefore the decision of the Commission
to deny appellant's request.
Notwithstanding our denial of appellant's request, however, we exercise
our discretion pursuant to 29 C.F.R. �1614.407(a) of our regulations to
reconsider the previous decision, in part. With regard to the dismissal
of allegations a and c-g, our review of the record, including appellant's
assertions below, indicates that, in assessing whether one or more of
these allegations state a claim, they are more properly viewed as part
of an overriding allegation of harassment rather than as separate and
distinct incidents. In so doing, we find that when considered together,
they are sufficient to state a claim of discriminatory harassment. See
Cobb v. Dept. of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
We further find that the AJ and the previous decision erred in finding
that these allegations were rendered "moot" by appellant's disability
retirement. Appellant asserted that the harassment alleged caused him
tremendous mental, physical, and financial anguish and requested monetary
compensation. We find that appellant's statements are sufficient to
indicate an intent to claim compensatory damages in the event that
he prevails on his complaint. The Commission has held that an agency
must address the issue of compensatory damages before it can dismiss
a complaint for mootness. Lori Ann Salazar v. Dept. of Justice, EEOC
Request No. 05930316 (February 9, 1994). Consequently, it was erroneous
to refer to appellant's allegations of discriminatory harassment as
"moot." In view of our finding that these allegations both state a claim
and remain justiciable, we will remand this matter to be forwarded to
an EEOC AJ for a administrative hearing on the merits of the remanded
allegations. Since allegation b is part of appellant's allegation of
alleged discriminatory harassment, which we now remand for a hearing,
we deem a ruling on the merits of that allegation inappropriate at this
time. Therefore, the previous decision's finding on the merits of this
allegation is vacated, and allegation b is remanded to be considered
together with allegations a and c-g.
CONCLUSION
After a review of the appellant's request for reconsideration,
the previous decision, and the entire record, the Commission
finds that appellant's request fails to meet the criteria of 29
C.F.R. �1614.407(c), and it is the decision of the Commission to
DENY this request. The Commission exercises its discretion, however,
pursuant to 29 C.F.R. �1614.407(a) to reconsider the decision on its
own motion. The decision of the Commission in EEOC Appeal No. 01960344
(May 13, 1996) and the agency's final decision are REVERSED in part and
VACATED in part. The agency is directed to comply with the Commission's
Order set forth below. There is no further right of administrative appeal
from a decision of the Commission on a request to reconsider.
ORDER (E1092)
Within ten (10) days of its receipt of this decision, the agency shall
forward appellant's complaint to the appropriate district office of the
EEOC for the conduct of an administrative hearing.<3> A copy of the
agency's letter forwarding this case for hearing 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:
March 18, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Although appellant's wife brings this request on behalf of her husband,
who is deceased, she has not submitted evidence that she is an official
representative of her husband's estate. While we exercise our discretion
to address this request, appellant is advised that if she intends to
proceed further in pursuit of her husband's complaint, she must submit
documentation which indicates that she is proceeding as the legal
representative of the estate.
2Appellant raised seven other allegations which were dismissed by the
agency either for untimely EEO counselor contact or for failure to state
a claim. This dismissal was affirmed by the Commission on appeal. See
_________ v. NASA, EEOC Request No. 05930765 (March 11, 1994).
3Continued processing of appellant's complaint shall be contingent upon
presentation of proof that the representative who proceeds on appellant's
behalf has the legal authority to represent his estate in this matter.