Aylin Ortiz, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionJan 23, 2012
0520110606 (E.E.O.C. Jan. 23, 2012)

0520110606

01-23-2012

Aylin Ortiz, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.




Aylin Ortiz,

Complainant,

v.

Tom J. Vilsack,

Secretary,

Department of Agriculture,

Agency.

Request No. 0520110606

Appeal No. 0120100147

Agency No. RD-2008-00934

DENIAL

Complainant timely requested reconsideration of the decision in Aylin

Ortiz v. Department of Agriculture, EEOC Appeal No. 0120100147 (June

29, 2011). EEOC Regulations provide that the Commission may, in its

discretion, grant a request to reconsider any previous Commission decision

where the requesting party demonstrates that: (1) the appellate decision

involved a clearly erroneous interpretation of material fact or law; or

(2) the appellate decision will have a substantial impact on the policies,

practices, or operations of the agency. See 29 C.F.R. § 1614.405(b).

Our previous decision affirmed the Agency’s dismissal of Complainant’s

EEO complaint as untimely filed. We therein noted that Complainant

acknowledged that she had filed her formal complaint beyond the

fifteen-day deadline in our regulations, but argued that the deadline

should be waived. Complainant contended that the Notice of Right to

File she received did not include all of the bases of discrimination she

had raised during counseling, and that her delay in filing was caused

by her awaiting a reply from the EEO Counselor regarding amendment of

the Notice. Our previous decision found that waiver of the deadline was

not warranted under these circumstances, given that Complainant had been

properly advised of the requirement to file her formal complaint within

fifteen days of receipt of the Notice.

We remind Complainant that a “request for reconsideration is not

a second appeal to the Commission.” Equal Employment Opportunity

Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9,

1999), at 9-17; Lopez v. Dep’t of Agriculture, EEOC Request

No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is

an opportunity to demonstrate that the previous decision involved a

clearly erroneous interpretation of material fact or law; or (2) will

have a substantial impact on the policies, practices, or operations of

the Agency.

After reviewing the previous decision and the entire record, the

Commission finds that the request fails to meet the criteria of 29

C.F.R. § 1614.405(b), and it is the decision of the Commission to DENY

the request. The decision in EEOC Appeal No. 0120100147 remains the

Commission's decision. There is no further right of administrative

appeal on the decision of the Commission on this request.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission’s decision. 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. 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.

RIGHT TO REQUEST COUNSEL (Z0610)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

January 23, 2012

Date

2

0520110606

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013