0520120555
01-24-2013
Barbara Cole, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Barbara Cole,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Request No. 0520120555
Appeal No. 0120111332
Agency No. HHS-PSC-0194-2010
DENIAL
Complainant timely requested reconsideration of the decision in Barbara Cole v. Department of Health and Human Services, EEOC Appeal No. 0120111332 (July 13, 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).
In our previous decision, we affirmed the Agency's final decision, finding that Complainant failed to establish that she was subjected to discrimination as alleged. We found that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant to the Financial Analyst position. We noted that the selecting official (SO1) stated that Selectee 1 was the most qualified candidate for the position based on her background in service desk support and her pursuit of a master's degree. We noted that S1 declined the position and the vacancy announcement was canceled. We noted that the Chief of the Audit Liaison Staff (SO2) received permission to select a candidate from the previous Certificate of Eligibles for a position with the Audit Liaison Staff. We noted that SO2 selected Selectee 2 based on her background in financial reporting and accounting. We found no evidence that the Agency's articulated reasons were pretext for discrimination.
In her request for reconsideration, Complainant, in pertinent part, contends that she did not receive any notice from Human Resources stating that the announcement was canceled or any reason for not being interviewed or selected for the position. Complainant believes that she was not interviewed for the position because of an e-mail that she sent to her supervisor months before filing her EEO complaint. Complainant believes that she was subjected to retaliation.
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. While the selection process may not have been ideal, Complainant has not shown by a preponderance of the evidence that the Agency's actions were motivated by discriminatory animus. The ultimate burden of persuasion remains Complainant's. Reeves v. Sanderson Plumbing Products. Inc., 530 U.S. 133, 143 (2000).
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. 0120111332 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
January 24, 2013
Date
2
0520120555
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120555