_____________________ 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.