0520120606
12-05-2012
Dawn M. Rosso, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Dawn M. Rosso,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Request No. 0520120606
Appeal No. 0120113690
Agency No. HSCBP0011272011
DENIAL
Complainant timely requested reconsideration of the decision in Dawn M. Rosso v. Department of Homeland Security, EEOC Appeal No. 0120113690 (July 27, 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).
The previous decision affirmed the Agency's determination that Complainant failed to state a claim of discriminatory harassment with regard to her allegation that the Port Director, on May 3, 2011, telephoned a co-worker and asked whether the co-worker needed to be saved from Complainant. In her request for reconsideration, Complainant maintains that the subject appeal, along with EEOC Appeal No. 0120121835 (July 27, 2012),1 are the first of several complaints that she has filed that have reached the Commission. She maintains that when viewed together her complaints demonstrate a pattern of discriminatory harassment and a hostile work environment.
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. 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.
Here, we find no evidence that Complainant has met the criteria for reconsideration. Complaint, for the most part, does not address the specific findings of the previous decision that her allegation, even if viewed as being true, was not sufficiently severe or pervasive enough to have altered the conditions of Complainant's employment. Instead, she asked that the allegation at issue in this complaint be consolidated with the matter at issue in EEOC Appeal No. 0120121835 (July 27, 2012). This was a matter for which Complainant was unable to establish discrimination. We note that Title VII is not a civility code. Rather, it forbids "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).
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. 0120113690 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
____12/5/12______________
Date
1 In that appeal, the Commission affirmed the Agency's finding that Complainant failed to establish that she was subjected to discriminatory harassment when, on August 2, 2011, she e-mailed a Supervisor and reported that a co-worker consistently demonstrated rude and obnoxious behavior, and failed to provide civil responses to work-related questions.
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0520120606
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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