0520120324
11-30-2012
Barbara E. Smyth, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Barbara E. Smyth,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520120324
Appeal No. 0120114000
Agency No. 2001-0557-2011103768
DENIAL
Complainant timely requested reconsideration of the decision in Barbara E. Smyth v. Department of Veterans Affairs, EEOC Appeal No. 0120114000 (February 7, 2012). 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).
In our previous decision, we found that the Agency properly dismissed Complainant's complaint for untimely counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). We noted that the alleged discriminatory event occurred between 2003 and 2006, but Complainant did not contact an EEO Counselor until June 17, 2011, well beyond the 45-day limitation period. We noted that Complainant waited over five years to contact an EEO Counselor.
In her request for reconsideration, Complainant, in pertinent part, contends that the Agency inequitably delayed her and other dietitians' pay conversion to the Title 38 pay scale. Complainant contends that this pay conversion should have taken place sometime between 2003 and 2006. Complainant contends that she reported this to the Agency's central office, but was not informed that she could pursue the matter through the Commission.
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; e.g., 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. Complainant does not dispute that the matter above occurred between 2003 and 2006, and that she did not contact an EEO Counselor until June 17, 2011.
The decision in EEOC Appeal No. 0120114000 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
November 30, 2012
Date
2
0520120324
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120324