Elizabeth Donnelly v. Department of Energy 01975251 October 30, 1998 Elizabeth Donnelly, ) Appellant, ) Appeal No. 01975251 v. ) Agency No. DOE 94(9)NV ) Bill Richardson, ) Secretary, ) Department of Energy, ) Agency. ) DECISION Appellant timely filed an appeal from a final agency decision ("FAD") dated May 23, 1997. The appeal is accepted in accordance with EEOC Order No. 960, as amended. In October 1993, appellant filed a formal EEO complaint which alleged that she had been subjected to discrimination on the bases of her sex, national origin (German/Jewish), religion (Jewish ancestry), age (42) and reprisal for prior EEO activity. In pertinent part, that complaint challenged appellant's nonselection for the agency's Defense Programs Fellowship. After the agency issued its FAD, appellant timely filed an appeal. On appeal, the Commission found that the agency had failed to develop a "complete and impartial factual record," in accordance with 29 C.F.R. §1614. 108(b), inasmuch as the EEO Investigator neither identified, nor obtained a statement from, the individual(s) responsible for making the selection decision. In addition, the record did not contain any specifics regarding the selection process or why appellant was not selected. Accordingly, the Commission vacated the FAD and remanded the matter, ordering the agency to determine the responsible agency official(s) and to obtain relevant evidence, including who was selected, that individual's qualifications, and why appellant was not selected. See EEOC Appeal No. 01951625 (May 5, 1997). Meanwhile, on November 26, 1996, the agency issued a FAD which pertained to 16 other EEO complaints filed by appellant. In this FAD, the agency noted that appellant had filed some 29 complaints containing approximately 50 allegations, had named at least 52 agency officials as actively engaging in malfeasance and collusion against her, had attacked individuals responsible for processing her complaints, had repeatedly filed complaints containing identical issues, and had failed to prevail on the merits of any of her allegations. The agency found that appellant's complaints were subject to dismissal for abuse of the EEO process. Appellant timely appealed this FAD. Upon receipt of the Commission's Order in EEOC Appeal No. 01951625, the agency issued a new FAD on May 23, 1997, which referenced its November 1996 FAD and again dismissed the complaint. This time, the agency dismissed the complaint for abuse of the EEO process. As noted above, upon receipt of this FAD, appellant timely filed her instant appeal. However, while appellant's instant appeal was pending, the Commission issued its decision on appellant's challenge to the agency's November 1997 FAD. The Commission found that the agency had improperly determined that appellant's complaints were subject to dismissal for abuse of the EEO process. See EEOC Appeal No. 01972171 (November 17, 1997). The agency did not file a request to reopen this decision. Accordingly, the Commission finds that the agency improperly dismissed appellant's instant complaint. Consequently, the agency's FAD dated May 23, 1997, is VACATED and this matter is REMANDED to the agency, which is directed to process the matter in accordance with the Commission's prior Order in EEOC Appeal No. 01951625. ORDER (E1092) The agency is ORDERED to process the remanded allegation in accordance with 29 C.F.R. §1614.108. In particular, the agency shall conduct a supplemental investigation which shall include the following actions: (1) The agency shall determine the agency official(s) responsible for making the decision not to select appellant for the Defense Program Fellowship and obtain a statement from such official(s). Additionally, the agency shall obtain any other relevant evidence concerning this issue, including who was selected, that individual's qualifications, and why appellant was not selected. (2) The agency shall afford appellant an opportunity to respond, in writing, to all of the evidence gathered during this supplemental investigation. Thereafter, the agency shall issue a final decision. 29 C.F.R. §1614.110. The supplemental investigation and issuance of the final decision must be completed with forty-five (45) calendar days of the date this decision becomes final. A copy of the final decision must be submitted 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 RIGHTS-ON APPEAL RECONSIDERATION (M0795) The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. New and material evidence is available that was not readily available when the previous decision was issued; or 2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or 3. The decision is of such exceptional nature as to have substantial precedential implications. Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reconsider. See 29 C.F.R. §1614.407. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed filed on the date it is received by the Commission. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. §1614.604(c). 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: Oct 30, 1998 ________________ ___________________________ DATE Ronnie Blumenthal, Director Office of Federal Operations