CATHERINE M. NOONE, APPELLANT, v. R. JAMES WOOLSEY, DIRECTOR, CENTRAL INTELLIGENCE AGENCY, AGENCY. Request No. 05940422 Appeal Nos. 01934677, 01940372 Agency No. 93-20 January 23, 1995 DENIAL OF REQUEST FOR RECONSIDERATION INTRODUCTION On February 28, 1994, the Central Intelligence Agency (hereinafter referred to as the agency) timely initiated a request to the Equal Employment Opportunity Commission (EEOC or Commission) to reconsider the decision in Catherine M. Noone v. R. James Woolsey, Director, Central Intelligence Agency, EEOC Appeal Nos. 01934677 and 01940372 (January 26, 1994) received on January 31, 1994. EEOC regulations applicable to the instant case provide that the Commissioners may, in their discretion, reconsider any previous 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 three criteria prescribed by 29 C.F.R. §1614.407(c): 29 C.F.R. §1614.407(c)(1) (new and material evidence is available that was not readily available when the previous decision was issued), 29 C.F.R. §1614.407(c)(2) (the previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy), and 29 C.F.R. §1614.407(c)(3) (the decision is of such exceptional nature as to have substantial precedential implications). The agency brings its request under 29 C.F.R. §1614.407(c)(2). For the reasons set forth herein, the agency's request is denied. ISSUE PRESENTED The issue presented is whether the Commission's previous decision properly reversed the agency's rejection of appellant's complaint on the grounds that it failed to state a claim. BACKGROUND The pertinent facts were set forth in detail by the previous decision and are incorporated by reference herein. On July 12, 1993, appellant filed a formal EEO complaint alleging sex (female) and age (61) discrimination. In an August 30, 1993 final agency decision (FAD1), the agency characterized appellant's allegations as follows: [FN1] 1. From October 1991 until November 1991, appellant alleged that she was subjected to sex discrimination in the form of sexual harassment when appellant's supervisor implied that she would not receive an overseas assignment unless she went out with him; 2. Circa December 1991, appellant alleged that she was subjected to reprisal when her supervisor wrote a negative performance evaluation because appellant had refused to go out with him and had refused his offer of an overseas assignment as his secretary; and 3. From December 1991 until May 1993, appellant alleged that she was subjected to reprisal because the results of the negative performance evaluation by her former supervisor created a hostile working environment in which she was given contradictory work instructions and wrongly accused of incompetence. [FN2] In FAD1, the agency rejected allegation Nos. 1 and 2 for untimely EEO counselor contact, but advised appellant that it would consider allegation No. 3 to be timely if she could specify the matter alleged to be discriminatory which occurred within 45 calendar days prior to her EEO counselor contact. The agency also gave appellant 15 days from her receipt of FAD1 in which to demonstrate how she was aggrieved by the agency's actions with regard to allegation No. 3 of her complaint. In a September 30, 1993 final agency decision (FAD2), the agency dismissed allegation No. 3, finding that appellant had not demonstrated how she was aggrieved by the agency's actions towards her. In doing so, the agency referred to a September 8, 1993 response from appellant which allegedly referred to certain documentation presented to the EEO counselor on June 8, 1993 which contained three memorandums for the record received by appellant from agency officials. [FN3] The agency found that none of these memorandums constituted an adverse action. Appellant filed an appeal from each of the aforementioned final agency decisions. The appeals were consolidated for decision by the Commission. The previous decision affirmed the agency's rejection of allegation Nos. 1 and 2 of her complaint in FAD1 as untimely. However, the decision reversed the agency's determination in FAD2 that appellant's allegation No. 3 failed to state a claim because appellant failed to demonstrate how she was aggrieved by the cited memorandums. Specifically, the previous decision found that appellant was aggrieved because the agency issued three "Memorandums for the Record" which cast her performance in a negative light and because appellant asserted that the three memorandums were used as a basis to process her termination. Thus, the previous decision remanded issue No. 3 for continued processing by the agency. The decision also noted that appellant appeared to be seeking to raise new issues on appeal on which she had not received counseling, e.g., her subsequent placement on administrative leave, the removal of her badge, and not being permitted to return to her desk. The decision advised appellant that if she wished to pursue these matters further, she should initiate EEO counseling. The record indicates that the agency issued the three subject memorandums to appellant within three days. The first memorandum, dated April 5, 1993, purports to be appellant's interim performance evaluation, discusses her performance in a negative manner, and states that because appellant's performance since her assignment to the branch did not meet agency standards, she should not be certified for staff status. [FN4] The second memorandum, also dated April 5, 1993, is entitled "Letter of Warning." This letter details two previous incidents of performance counseling of appellant by agency officials, indicates continued performance deficiencies and warns appellant that after 30 days, "stronger disciplinary action may have to be taken if your performance does not significantly improve."Agency officials required appellant to sign for the receipt of the memorandum. The third memorandum, dated April 7, 1993 is a record of a counseling session wherein appellant read and acknowledged the two previous memorandums, was again advised about her alleged performance deficiencies, and offered a response to the alleged deficiencies. This memorandum also bears appellant's signature. In its request for reconsideration, the agency argues that appellant was not aggrieved by the three memorandums because they were not part of appellant's official personnel file or any other official or permanent file. In this regard, the agency cites the Section-by-Section Analysis of 29 C.F.R. § 1614.107(e) at 57 Fed. Reg. 12643 (April 10, 1992) in support of its position. The agency further asserts that the Commission's decision that the fact that the three memorandums were used to process appellant's termination rendered her aggrieved with respect to those memorandums is erroneous, since appellant has not yet filed a timely complaint regarding her subsequent loss of her badge, placement on administrative leave or termination. [FN5] The agency asserts that while the previous decision did not allow these issues to be overtly added to appellant's complaint, it seemed to implicitly allow the issue of its processing of appellant's termination to be added to the issues. The agency asserts that referral to counseling memorandums when termination on performance grounds is considered does not render the counseling harmful. It claims that the previous decision will have a chilling effect on bona fide performance counseling. Finally, the agency requests clarification of the ruling of the previous decision, reconciling the decision not to add the circumstances of appellant's later placement on administrative leave, with the decision to effectively consider the circumstances of appellant's termination. The agency asserts that it is unclear whether it is now required to investigate the circumstances of appellant's termination on remand. In her response to the agency's request for reconsideration, appellant asserts that she was never advised by the agency that the written memorandums she received were not part of her official personnel file. She alleges that she was told by the author of the memorandums that she would never work again in the federal government and would spend the rest of her life scrubbing woodwork. She claims that all of the issues outlined in her "grievance" are related, that she was "stopped" after her negative performance evaluation, was not allowed to proceed in a secretarial capacity and was ultimately being set up for termination in the non-bona fide performance counseling she received. ANALYSIS AND FINDINGS After a careful review of the record, the Commission finds that the agency's request for reconsideration fails to meet any of the criteria under 29 C.F.R. § 1614.407(c). It is therefore the decision of the Commission to deny the request. In this regard, we emphasize that a request for reconsideration must meet one of the regulatory criteria of 29 C.F.R. §1614.407(c). The agency has failed to meet any of the criteria discussed above. We will address each of the agency's principal arguments in turn. First, the agency asserts that the Commission's regulatory authority concerning informal performance reviews is controlling in the present case because the memorandums received by appellant were not made a part of any official file on appellant. The Section-by-Section analysis of 29 C.F.R. §1614.107(e) at 57 Fed. Reg. 12643 (April 10, 1992) cited by the agency expresses the Commission's intent to require this provision to require the dismissal of complaints that allege discrimination in any preliminary steps that do not, without further action, affect the person. As an example of such an action warranting dismissal, the Commission lists "progress reviews or improvement periods that are not part of an official file on the employee."The Commission goes on to state that "if the individual alleges, however, that the preliminary step was taken for the purpose of harassing the individual for a prohibited reason, the complaint cannot be dismissed under this section because it has already affected the employee." Id. at 12643. In the present case, while the agency alleges that the three memorandums cited at issue do not render appellant aggrieved in that they have not been retained in any official file, appellant has clearly alleged that the agency has engaged in a pattern of harassment of her based upon discrimination and in reprisal for her refusal to succumb to her former supervisor's alleged sexual advances, by creating a hostile work atmosphere in which appellant's competence was questioned, and she was given conflicting work instructions. In her response to the agency's request for reconsideration, appellant also alleges that she was prevented from proceeding "in a secretarial capacity" by the agency. The memorandums at issue are clearly alleged to be part of this pattern of harassment. Therefore, appellant has been harmed by these memorandums. [FN6] Moreover, the second memorandum is entitled "letter of warning" and clearly characterizes itself as disciplinary action in stating that, if appellant's alleged performance problems do not improve within 30 days, "stronger disciplinary action may have to be taken."One of these memorandums further specifically recommended that appellant not be "certified for "staff status." Appellant was also required to sign for the subject memorandums, which were all given to her within a short three day time period. Also, the EEO counselor's report indicated that appellant alleged that she was deprived of promotional opportunities as a result of the agency's actions. Based on the foregoing, we find that appellant clearly is aggrieved by the allegedly harassing memorandums at issue. The agency asserts that referral to counseling memorandums when termination on performance grounds is considered does not render the counseling harmful. It claims that the previous decision will have a chilling effect on bona fide performance counseling. We do not find these concerns to be compelling in that we reach the present decision based upon our finding that appellant's complaint states a claim of alleged harassment, not bona fide performance counseling. The Commission has specifically distinguished harassment claims from other claims involving performance counseling. The agency next asserts that the previous decision inconsistently considered the circumstances of her removal in finding that she was aggrieved, while refusing to consider her loss of her badge, and placement on administrative leave as part of her complaint. Neither the previous nor the present decision substantively adds these issues to the instant complaint. In order to actually have the circumstances of these subsequent events investigated by the agency, appellant would need to pursue a timely complaint concerning these issues, as appellant was correctly advised by the previous decision. [FN7] Our review of the previous decision does not indicate that it, in any respect, erroneously added these issues to the subject complaint. CONCLUSION After a review of the agency's request for reconsideration, the appellant's response thereto, the previous decision, and the entire record, the Commission finds that the agency'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 the agency's request. The decision in EEOC Appeal Nos. 01934677 and 01940372 (January 26, 1994) remains the Commission's final decision. The agency is directed to comply with the Order of the previous decision set forth below. There is no further right of administrative appeal on a decision of the Commission on a Request for Reconsideration. ORDER (E1092) 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 (K1092) 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. 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: Frances M. Hart Executive Officer Executive Secretariat FN1. Appellant has not objected to this characterization. FN2. The EEO counseling report indicated that as relief for her complaint, appellant sought, inter alia: that the "non-sexual harassment should stop"; that if her employment was terminated, she receive a decent recommendation to apply for employment elsewhere; and that she receive compensation for promotions she would have received absent the discrimination. FN3. The record forwarded to the Commission by the agency does not contain a copy of the September 8, 1993 response from appellant. FN4. Only page one of this memorandum is contained in the record. FN5. With its February 28, 1994 request for reconsideration, the agency submits a copy of a February 18, 1994 notice of termination, which indicates that appellant's termination from agency employment was effective on February 2, 1994. FN6. We expressly distinguish the present case, which involves allegations of harassment, from our recent decision in Wanda J. Jackson v. Central Intelligence Agency, EEOC Request No. 05931177 (June 23, 1994), in which the Commission found that placement into a performance improvement program which was not yet recorded in an official file on the appellant and could not yet be utilized for the purpose of taking an adverse action against the appellant did not render that appellant aggrieved. FN7. In this regard, we note that appellant's removal apparently occurred shortly before the agency filed its request for reconsideration. As yet, it is not clear from the record whether appellant has filed a complaint with the agency challenging her termination. Therefore, our present decision to sustain the previous decision's finding that appellant remains aggrieved does not consider the possibility that appellant's termination could render appellant's present harassment allegations moot.