0520120308
11-01-2012
Renee Abt, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
Renee Abt,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Request No. 0520120308
Appeal No. 0120103762
Hearing No. 570-2010-00162X
Agency No. NPS-08-0436
DENIAL
Complainant timely requested reconsideration of the decision in Renee Abt v. Department of the Interior, EEOC Appeal No. 0120103762 (January 31, 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).
ISSUE PRESENTED
The issue presented is whether Complainant met the criteria for reconsideration by demonstrating that the appellate decision: (1) 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.
BACKGROUND
In the underlying case, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (pregnancy) and reprisal for prior protected EEO activity when: (1) on July 7, 2008, it placed her on limited light duty status; (2) on July 7, 2008, it reassigned her to work administrative support duties; (3) on July 7, 2008, it revoked her home-to-work vehicle privileges; and (4) on July 11, 2008, it changed her work schedule which affected her work hours and days off.
The appellate decision affirmed the Agency's final order, which implemented an EEOC Administrative Judge's (AJ) decision without a hearing finding no pregnancy or reprisal discrimination. Initially, the appellate decision found that the AJ's issuance of a decision without a hearing was appropriate. Next, the appellate decision found that Complainant failed to establish a prima facie case of discrimination. Further, even assuming that Complainant established a prima facie case of discrimination, the appellate decision found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the appellate decision cited the following explanations by the Agency: (a) it provided Complainant with a temporary limited duty assignment performing administrative tasks to accommodate her obstetrician's instructions that she "may not have prisoner/suspect contact" and "may not lift more than 20 lbs;" (b) as a result of Complainant's limited duty assignment, her work schedule was changed; (c) Complainant's pay enhancements for working evenings and Sundays were suspended when her work schedule was changed, but were later restored at her request; and (d) Complainant's vehicle privileges were suspended in accordance with Agency policy requiring officers to turn in vehicles if assigned to a limited duty position for more than two weeks. Finally, the appellate decision found that Complainant failed to show that Agency's reasons were a pretext for discrimination.
ARGUMENTS ON RECONSIDERATION
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 erred in concluding that she failed to establish a prima facie case of discrimination. Regarding her prima facie case of pregnancy discrimination, Complainant asserted that she provided evidence that similarly situated individuals outside of her protected class were treated differently under similar circumstances. In addition, Complainant asserted that she provided evidence from which an inference of discrimination could be established. Regarding her prima facie case of reprisal discrimination, Complainant asserted that a nexus existed between her 1999 EEO activity and the adverse treatment because the same supervisor was involved in both. Finally, Complainant stated, without further argument, that the Agency did not successfully articulate legitimate, nondiscriminatory reasons for its actions.
The Agency did not submit a brief or statement in opposition to Complainant's request.
ANALYSIS AND FINDINGS
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. Specifically, Complainant failed to show that the appellate decision clearly erred in finding no pregnancy or reprisal discrimination.
The appellate decision, even assuming Complainant established a prima facie case of discrimination, found that she failed prove that the legitimate, nondiscriminatory reasons articulated by the Agency were pretextual. Therefore, Complainant must demonstrate in her request for reconsideration that the appellate decision clearly erred in that respect. We find that Complainant's arguments on reconsideration failed to make such a showing.
Complainant's request for reconsideration focused on how the appellate decision erred in finding that she failed to establish a prima facie case of discrimination. To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973). The prima facie case, however, is merely the first part of this three-part evidentiary scheme. Complainant has not shown how the appellate decision clearly erred either in finding that the Agency articulated legitimate, nondiscriminatory reasons for its actions (the second part) or in finding that she failed to prove pretext (the third part). We emphasize that "[t]he burden is on the requesting party to make a substantial showing that its request meets one of the two prerequisites for a granting of reconsideration." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Ch. 9, � VII.B.2 (Nov. 9, 1999). We find that Complainant has not met that burden.
CONCLUSION
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. 0120103762 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
__11/1/12________________
Date
2
0520120308
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120308