Renee M. Russell, Appellant,
v.
Michael P.W. Stone, Secretary, Department of the Army, Agency.

Request No. 
05910613
Appeal No. 01910578

August 01, 1991

GRANTING OF REQUEST TO REOPEN

INTRODUCTION

On May 16, 1991, Renee M. Russell (hereinafter referred to as appellant) initiated a request to the Equal Employment Opportunity Commission (EEOC or Commission) to reopen and reconsider the decision in Renee M. Russell v. Michael P. W. Stone, Secretary, Department of the Army, EEOC Appeal No. 01910578 (April 18, 1991). EEOC regulations provide that the Commission may, in its discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish one or more of the following criteria: 29 C.F.R. 1613.235(b)(1) (new and material evidence is available that was not readily available when the previous decision was issued); 29 C.F.R. 1613.235(b)(2) (the previous decision involved an erroneous interpretation of law or regulation, or a misapplication of established policy); and 29 C.F.R. 1613.235(b)(3) (the decision is of such exceptional nature as to have effects beyond the actual case at hand). Appellant appears to base her request on 29 C.F.R. 1613.235(b)(2). For the reasons set forth herein, appellant's request is granted.

ISSUE PRESENTED

The issue presented is whether the Commission's previous decision properly affirmed the agency's rejection of allegation 4 of appellant's July 13, 1990 discrimination complaint on the grounds that the allegation states the same claims as allegations 1-3 of the same complaint which the Commission ordered the agency to accept and process.

BACKGROUND

At the time this matter arose, appellant was employed by the agency as a Supervisory Architect in the Installation Management Branch, U.S. Military Community, Aschaffenburg, Germany. On July 13, 1990, appellant filed a formal EEO complaint alleging: (1) that on May 18, 1990, she received a Letter of Proposed Suspension from her immediate supervisor in retaliation for initiating EEO activity against him for allegedly refusing to accommodate her physical handicap; (2) that during and since appellant first sought EEO counseling on March 19, 1990, the agency's EEO Officer has attempted to discourage appellant from filing EEO complaints and has, in numerous ways, acted improperly to prevent appellant's complaints from being filed and investigated in a proper and timely manner; (3) that the Deputy Community Commander supported the improper actions of the agency's EEO Officer; and (4) that the agency failed to 'support' and make appellant 'whole' when she informed agency officials of the 'gross pattern' of discriminatory activity engaged in by her immediate supervisor.

In detailing allegation 4 in her formal complaint, appellant incorporated by reference a memorandum she had written, dated June 12, 1990, in which she made further allegations of a pattern of discriminatory conduct on the part of her immediate supervisor. Appellant also claimed there was a pattern in the agency's failure to properly respond to her complaints about this alleged discrimination. While much of this memorandum provided information which directly related to allegations 1-3 of appellant's complaint, appellant also asserted that her immediate supervisor discriminated against her when: (a) on May 10, 1990, her supervisor issued her a memorandum providing unrealistic suspense dates for a number of projects she was assigned; (b) on May 10, 1990, appellant was issued a Letter of Reprimand by her supervisor; and (c) on June 7, 1990, appellant received her performance appraisal prepared by her supervisor which did not accurately reflect her work performance during the relevant rating period.

On October 12, 1990, appellant received a final decision from the agency rejecting her complaint. In this final decision, the agency rejected allegation 1 on the grounds that it was only a proposed action which was never effected. The agency went on to reject allegations 2-4 because appellant had purportedly failed to seek EEO counseling on these issues in a timely manner as required by 29 C.F.R. 1613.214(a)(1)(i). Upon receipt of the agency's final decision, appellant timely appealed the agency's rejection of her complaint to this Commission.

On April 18, 1991, the Commission issued its decision, vacating the agency's rejection of allegations 1-3, and remanding those allegations back to the agency for acceptance and further processing. Renee Russell v. Michael P.W. Stone, Secretary, Department of the Army, EEOC Appeal No. 01910578 (April 18, 1991). Neither appellant nor the agency is challenging this portion of the Commission's decision and therefore the remand of allegations 1-3 is not at issue. However, the Commission went on to affirm the agency's rejection of allegation 4, which prompted the appellant to file the present request to reopen. In its decision regarding allegation 4, the Commission found that the agency's decision to reject this allegation on timeliness grounds was incorrect. However, the Commission concluded that allegation 4 stated the same claims as those already remanded back to the agency in allegations 1-3. Therefore, the Commission rejected allegation 4 as repetitive pursuant to 29 C.F.R. 1613.215(a)(1).

In her request to reopen, appellant challenges the Commission's finding that allegation 4 contains the identical claims to those contained in allegations 1-3. In addition, appellant alleges that she was subjected to a pervasive pattern of discrimination at the hands of numerous agency officials throughout her tenure at the Aschaffenburg Military Community.

The agency filed no response to appellant's request to reopen.

ANALYSIS AND FINDINGS

The Commission may, in its discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. 1613.235(b) is met. In order for a case to be reopened, the request must contain specific information which meets the criteria referenced above. After a careful review of the record, the Commission's previous decision, and the arguments of appellant, the Commission concludes that it is appropriate under the circumstances of this case to reopen and reconsider its previous decision.

Neither the agency nor appellant have contested the Commission's previous order requiring the agency to accept and process allegations 1-3 of appellant's complaint of July 13, 1990. Therefore, the only matter at issue in the present request to reopen is the Commission's decision to affirm the agency's rejection of allegation 4 on the grounds that it states the same claims as those which the Commission already ordered the agency to process in allegations 1-3.

29 C.F.R. 1613.215(a)(1) provides, in pertinent part, that an agency shall reject a complaint of discrimination which 'states the same claim that is pending before or has been decided previously by the agency.' The Commission's Complaint Processing Manual, MD-107, Ch. 6-4, makes it clear that in order for an agency to properly reject an allegation for raising the same claim as a previously accepted complaint, the rejected allegation must set forth 'identical matters' as those contained in the earlier complaint pending before or decided by the agency.

In present matter, allegation 4 of appellant's complaint is a very general allegation that the agency failed to support appellant against the discriminatory conduct of her supervisor. The Commission's previous decision is correct in that, on its face, allegation 4 appears repetitive of the more detailed allegations 1-3 which the Commission ordered the agency to process.

However, a careful examination of appellant's complaint form reveals that appellant explicitly incorporated by reference into allegation 4 a memorandum she had written, dated June 12, 1990, which was attached to the complaint form. In this memorandum, appellant fleshes out the general allegations made on the complaint form with more details and examples. While many of these examples were repetitive of the claims raised in allegations 1-3, some were not. Specifically, appellant asserted she was discriminated against by her supervisor when: (a) on May 10, 1990, her supervisor issued her a memorandum providing unrealistic suspense dates for a number of projects she was assigned; (b) on May 10, 1990, appellant was issued a Letter of Reprimand by her supervisor; and (c) on June 7, 1990, appellant received her performance appraisal prepared by her supervisor which did not accurately reflect her work performance during the relevant rating period. Clearly, these allegations do not concern identical matters to those which will be addressed by the agency's processing of allegations 1-3. The Commission's previous decision therefore erred in affirming the agency's rejection of these portions of allegation 4.

For this reason, the Commission will modify its order in EEOC Appeal No. 01910578 to additionally require the agency to accept and process those portions of allegation 4 concerning appellant's May 10, 1990 Letter of Reprimand for poor performance, the May 10, 1990 memorandum of suspenses for assigned projects, and the June 7, 1990 performance appraisal.

Finally, the Commission notes that in her statement submitted on request to reopen, appellant attempts to raise additional incidents of discrimination concerning, among other things, her job classification, performance standards and training opportunities. The record gives no indication that any of these additional allegations were ever raised with an agency EEO Counselor, and it appears that the agency has not had the opportunity to consider them. Appellant is advised that she must initially raise these matters with an EEO Counselor and it is not appropriate for the Commission to address these issues prematurely.

CONCLUSION

After a review of the appellant's request to reopen, the previous decision, and the entire record, the Commission finds that the appellant's request meets the criteria of 29 C.F.R. 1613.235(b). Accordingly, it is the decision of the Commission to grant appellant's request to reopen EEOC Appeal No. 01910578 (April 18, 1991), and that decision is hereby modified to additionally require the agency to accept and process allegation 4 of her July 1990 discrimination complaint. This allegation is remanded back to the agency in accordance with the ORDER set forth below. There is no further right of administrative appeal on a decision of the Commission on a Request to Reopen. This decision does not constitute a decision on the merits of appellant's complaint.

ORDER

Accordingly, the agency's final decision to reject allegation 4 in appellant's July 1990 EEO complaint is VACATED, and the allegations of discrimination contained therein concerning appellant's May 10, 1990 Letter of Reprimand for poor performance, the May 10, 1990 memorandum of suspenses for assigned projects, and the June 7, 1990 performance appraisal are hereby REMANDED to the agency for acceptance and continued processing pursuant to 29 C.F.R. 1613.215 - 1613.222. The agency shall notify the Commission and the appellant no later than thirty (30) calendar days from the date that this decision is received that it has accepted the previously rejected allegation as described herein. A copy of the letter of acceptance must be submitted to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0391)

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.

STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST TO REOPEN

RIGHT TO FILE A CIVIL ACTION (R0391)

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: (1) within thirty (30) calendar days of receipt of notice of final action taken by the agency on your complaint subsequent to this remand; or (2) after one hundred and eighty (180) calendar days of the date you filed your complaint with the agency, or your appeal with the Commission, until such time as the agency issues its final decision on your complaint. See Section 717(c) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq.; 29 C.F.R. 1613.281. You may be required to exhaust the administrative process prior to filing a civil action, depending upon the jurisdiction in which you file. Furthermore, the limitations period for filing a civil action under the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. 621 et seq. (ADEA) may differ from the period set out for the filing of civil actions under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. 791. You may be foreclosed from filing a civil action on any claim brought under the ADEA if you fail to file within the limitations period applied by the Court in the jurisdiction in which your action is filed. 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. '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 (Z0391)

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 THIRTY (30) CALENDAR DAYS of the date you receive the Commission's decision.

FOR THE COMMISSION:

Frances M. Hart
Executive Officer
Executive Secretariat