0520120329
12-06-2012
Gail S. Archbell, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Gail S. Archbell,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520120329
Appeal No. 0120110341
Agency No. 2004-0565-2009101704
DENIAL
Complainant timely requested reconsideration of the decision in Gail S. Archbell v. Department of Veterans Affairs, EEOC Appeal No. 0120110341 (February 2, 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).
On May 20 2009, Complainant filed a formal complaint in which she alleged that the Agency subjected her to discrimination in reprisal for prior EEO activity when it issued her a letter of counseling for an inappropriate leave pattern and charged her 15 minutes of annual leave for arriving late to work. The Agency found that Complainant failed to prove that the Agency subjected her to reprisal, and in our previous decision, the Commission affirmed the Agency's finding.
In her request for reconsideration, Complainant reasserts her claim that a similarly situated co-worker, who was also late on the day at issue, had a documented history of being late but was treated more favorably than Complainant. We note 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; see, 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. Complainant has not done so here. Complainant maintained that her supervisor told a "bald faced lie" when she said that she was unaware that a co-worker also was late arriving for work on the date at issue. However, Complainant has not proven that the supervisor was aware that the co-worker was late on the pertinent date or that the co-worker had a documented history of being late. We note that Complainant did not avail herself of the opportunity to have her assertions assessed and developed during a hearing before an EEOC Administrative Judge (AJ). As such, our previous decision properly found that Complainant failed to prove that the Agency subjected her to unlawful reprisal.
Therefore, 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. 0120110341 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
December 6, 2012
Date
2
0520120329
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120329