Arsilla C. Alvarez, Complainant,v.Gale A. Norton, Secretary, Department of the Interior, (Bureau of Land Management), Agency.

Equal Employment Opportunity CommissionJul 6, 2001
05A10527 (E.E.O.C. Jul. 6, 2001)

05A10527

07-06-2001

Arsilla C. Alvarez, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, (Bureau of Land Management), Agency.


Arsilla C. Alvarez v. Department of the Interior

05A10527

July 6, 2001

.

Arsilla C. Alvarez,

Complainant,

v.

Gale A. Norton,

Secretary,

Department of the Interior,

(Bureau of Land Management),

Agency.

Request No. 05A10527

Appeal Nos. 01A00737

Agency Nos. LLM-98-005, LLM-98-029

Hearing Nos. 350-99-8004X, 350-99-8005X

DENIAL OF REQUEST FOR RECONSIDERATION

The complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Arsilla

C. Alvarez v. Department of the Interior, EEOC Appeal No. 01A00737

(March 1, 2001). EEOC Regulations provide that the Commission may, in

its discretion, 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).

In EEOC Appeal No. 01A00737, the Commission found that complainant was not

discriminated against on the bases of her national origin (Hispanic) and

reprisal for prior EEO activity when: (1) she was subjected to harassment

and a hostile work environment while employed as a Staff Assistant, GS-5,

in the Roswell, New Mexico District Office; (2) she was not selected

to perform the collateral duty of contract officer representative on

October 20, 1997; and (3) she was not called to serve on fire duty between

February 1997 and June 1997. The Commission found that the Administrative

Judge's ultimate finding, that unlawful employment discrimination was not

proven by a preponderance of the evidence, was supported by the record.

In her request for reconsideration, the complainant maintains that

the appellate decision will have a substantial impact on the policies,

practices, or operations of the agency because management gave false

testimony under oath, large award amounts were given by the supervisor

and because management had others performing the duty of Initial Attack

Dispatchers for them.

With respect to complainant's claims of harassment and a hostile work

environment, hostile work environment harassment is actionable if it

sufficiently severe or pervasive to alter the conditions of complainant's

employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Although complainant contends that the incidents were based upon her

national origin and prior EEO activity, the Commission finds that she

failed to provide any evidence to show that the alleged harassment

was in fact based upon her protected class or activity. Accordingly,

we agree that complainant failed to establish that was subjected to

unlawful harassment.

We also find that the record reveals that complainant was not scheduled

for fire duty between February and June 1997 because she did not specify

that she was available to work so her name showed up as �unavailable�

on the list of qualified dispatchers. With respect to complainant's

nonselection, the record reveals that complainant was not selected for

the position of contract representative because she earned the lowest

score of the three candidates. With respect to complainant's contentions

in her request, the Commission finds that complainant failed to provide

any evidence regarding her statements.

Therefore, after a review of the complainant's request for

reconsideration, 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. 01A00737 remains

the Commission's final decision. There is no further right of

administrative appeal on the decision of the Commission on this request

for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

July 6, 2001

__________________

Date