0520120337
12-21-2012
Marilyn R. Eldridge, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Marilyn R. Eldridge,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520120337
Appeal No. 0120112713
Hearing No. 440-2009-00229X
Agency No. 200P-0537-2009101838
DENIAL
Complainant timely requested reconsideration of the decision in Marilyn R. Eldridge v. Department of Veterans Affairs, EEOC Appeal No. 0120112713 (Feb. 8, 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).
Our previous decision affirmed the Agency's final order adopting the decision of the EEOC Administrative Judge (AJ), who issued a decision without a hearing. The AJ found that Complainant had not shown that the Agency discriminated against her or subjected her to harassment on the basis of sex with respect to multiple incidents occurring in 2008 and 2009. Noting that Complainant had "attached numerous documents to her motion to amend," the AJ found that the "documents suggest that [Complainant's supervisor] did not like Complainant [but] do not suggest that the issue was Complainant's gender." The AJ also found that the incidents were not sufficiently severe or pervasive to create a hostile work environment and that Complainant did not suffer a materially adverse action regarding a delay in the approval of a leave request. In our previous decision, we found that the AJ appropriately issued a decision without a hearing and that the evidence did not establish that unlawful discrimination occurred. We concluded that there was ample evidence to support the AJ's determination that there was no nexus between the alleged harassment and Complainant's sex.
In her request for reconsideration, Complainant describes the incidents at issue and argues that the previous decision incorrectly stated that the matter raised in Claim 13 occurred on June 11, 2009, rather than on June 10, 2009. She also argues that the AJ failed to address the claims raised in her motion to amend her complaint. In response, the Agency argues that the AJ addressed the claims raised in the motion and that our previous decision correctly affirmed the Agency's final order.
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; 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.
Although the previous decision referred to June 11, rather than June 10, 2009, as the date of the incident in Claim 13, the reference was harmless error and did not affect the outcome of the decision. Further, contrary to Complainant's assertion, the AJ expressly noted that she had reviewed all of the documents submitted with Complainant's motion to amend and that Complainant had offered no evidence that the incidents discussed in the documents were related to her sex. Complainant has failed to demonstrate that the previous decision clearly erred in affirming the Agency's final order adopting the AJ's decision.
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. 0120112713 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 21, 2012
Date
2
0520120337
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120337