0520140313
10-16-2014
Complainant, v. Daniel M. Tangherlini, Administrator, General Services Administration, Agency.
Complainant,
v.
Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.
Request No. 0520140313
Appeal No. 0120140180
Agency No. GSA-13-R7-C-0134
DENIAL
Complainant timely requested reconsideration of the decision in Complainant v. General Services Administration, EEOC Appeal No. 0120140180 (April 11, 2014). 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(c).
On September 5, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (Black), disability, and reprisal for prior protected EEO activity when, in July 2013, she became aware that it did not offer her reassignment to two available positions in response to her March 2000 request for reassignment as a reasonable accommodation.1 Complainant stated that one of the two positions was a GS-5 Customer Service position that the Agency filled in June 2000.
The appellate decision affirmed the Agency's final decision dismissing Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(3), for raising the same issue that had been decided in Civil Action No. 4:10-cv-00400-Y by the United States District Court for the Northern District of Texas and the United States Court of Appeals for the Fifth Circuit.
In her request for reconsideration, Complainant contended that the appellate decision involved a clearly erroneous interpretation of material fact or law. Specifically, Complainant argued that the appellate decision clearly erred in not addressing the allegations she raised in a December 29, 2013 "amendment" to her appeal.2 In addition, Complainant argued that the appellate decision clearly erred in finding that the issue raised in the instant complaint had been decided in the civil action. Complainant noted that the court decisions did not mention the
GS-5 Customer Service position at issue in the instant complaint.
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
First, Complainant failed to show that the appellate decision clearly erred in not addressing the allegations she raised in her December 29, 2013 "amendment" to her appeal.
29 C.F.R. � 1614.403(d) provides, in pertinent part, that any statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal. Here, the record reflects that Complainant did not submit her December 29, 2013 "amendment" to her appeal within 30 days of filing her October 25, 2013 notice of appeal. Therefore, we find that the appellate decision did not have to consider Complainant's untimely December 29, 2013 "amendment" to her appeal.
See Petrack v. U.S. Postal Serv., EEOC Appeal No. 01963880 (Jan. 23, 1997) (declining to consider complainant's August 1996 amendment to his April 1996 appeal because it was filed beyond the 30-day time period for submitting supporting statements provided for in
29 C.F.R. � 1614.403(d)).
Second, Complainant failed to show that the appellate decision clearly erred in finding that the issue raised in the instant complaint had been decided in Civil Action No. 4:10-cv-00400-Y. The record contains a copy of the District Court's February 24, 2012 decision and the Court of Appeals' June 25, 2013 decision. Those decisions reflect that the issue decided in Complainant's civil action was whether the Agency discriminated against her when, beginning in 2000, it did not offer her reassignment in response to her request for reassignment as a reasonable accommodation. We find that the issue decided in Complainant's civil action encompasses the issue raised in the instant complaint - whether the Agency discriminated against her when, in 2000, it did not offer her reassignment to two available positions (including a GS-5 Customer Service position) in response to her request for reassignment as a reasonable accommodation. Although their decisions did not explicitly mention the GS-5 Customer Service position, the District Court and the Court of Appeals did not limit their analysis of the reassignment issue to specific positions. For example, the District Court stated, "[Complainant] has not produced evidence indicating that she was qualified for the GS-05 human-resources-assistant position or any other position to which she desired reassignment." In addition, the District Court stated that the record "[c]orroborat[ed] the [Agency]'s position that there were no job vacancies." Similarly, the Court of Appeals stated that it was applying the relevant legal standard "to all three positions that [Complainant] might have sought on reassignment: (i) one of the human resources assistant positions; (ii) her own supply technician position, but working from home; and (iii) a suitable alternative GS-5 position in the Fort Worth area." Moreover, the Court of Appeals stated that "the record does not show that there were any vacant GS-5 positions, similar to that of a supply technician, within the Fort Worth area but in an office other than the NFPC warehouse."
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(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120140180 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
__10/16/14________________
Date
1 Complainant stated that she became aware of the positions in July 2013 when she met with her attorney after receiving a decision in Civil Action No. 4:10-cv-00400-Y from the United States Court of Appeals for the Fifth Circuit.
2 Complainant alleged that the EEO Counselor discriminated against her in processing and dismissing the instant complaint.
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0520140313
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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