0520100114
05-06-2010
Brenda R. Foster, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Brenda R. Foster,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Request No. 0520100114
Appeal No. 0120090718
Hearing No. 443-2007-00088X
Agency No. FSIS200700021
DENIAL
Complainant timely requested reconsideration of the decision in Brenda
R. Foster v. Department of Agriculture, EEOC Appeal No. 0120090718
(October 2, 2009). EEOC Regulations provide that the Commission may,
in its discretion, grant a request to reconsider (RTR) 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).
The record reflects that on July 14, 2008, the EEOC Administrative Judge
(AJ) issued a decision. Therein, the AJ found that complainant was the
victim of unlawful employment discrimination on the bases of race and in
reprisal for prior EEO activity when she was reassigned from the agency's
Recruitment Section to the Pay and Leave Section. The AJ ordered that
complainant be reinstated to the position of Human Resources Assistant
(Recruitment), GS-7, in the Recruitment Unit. Complainant was also
awarded $3,000.00 in non-pecuniary compensatory damages and $7,940.00 in
attorney's fees and costs. Further, the agency was ordered to provide
mandatory training on Title VII for all managers at its Minneapolis,
Minnesota facility.
On November 12, 2008, complainant filed an appeal with the Commission's
Office of Federal Operation (OFO) claiming that the agency failed to reply
to her claim of non-compliance with the AJ's July 14, 2008 decision.
However, after reviewing this matter, OFO ultimately found that the
agency had taken the actions ordered by the AJ's July 14, 2008 decision.
In her RTR, complainant asserts that while the agency has placed her in
the position of Human Resources Assistant (Recruitment), GS-7, in the
Recruitment Unit, as required by its final order, it did not restore
previous duties to her. However, as correctly rebutted in the agency's
response to complainant's RTR:
Appellant filed her appeal claiming non-compliance with the AJ's decision
because she stated that the agency took no action for three (3) months.
After the agency provided documentation in April of 2009 showing that
it placed appellant in the position of Human Resources Assistant,
GS-7, in the Recruitment Section, appellant argues for the first time
on reconsideration that the agency did not comply with its Final Order
because appellant's position does not include certain duties, or that
others are performing work she should be performing. These issues
were simply not before OFO on appeal, and thus reconsideration is an
inappropriate vehicle for appellant to present these arguments.
Further, complainant fails to establish either of the criteria that
would support a RTR.
After reconsidering 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. 0120090718 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 (P0408)
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 (Z1008)
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
May 6, 2010
__________________
Date
2
0520100114
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520100114