0520120550
02-14-2013
Carol Chostner, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Carol Chostner,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520120550
Appeal No. 0120090335
Agency No. 0467895005
DENIAL
Complainant timely requested reconsideration of the decision in Carol Chostner v. Department of the Navy, EEOC Appeal No. 0120090335 (June 21, 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).
BACKGROUND
In the underlying case, Complainant alleged that the Agency was in breach of a settlement agreement dated February 4, 2004 to resolve an underlying EEO matter. The settlement agreement provided in relevant part:
[T]he Agency agrees to...
a. Provide Administrative Leave to the Complainant from 23 June 2003 to the date her FECA claim is approved;
b. Reinstate/restore all sick and annual leave used or lost by the complainant from 23 June 2003 to the date all parties have signed this [settlement agreement].
Complainant initially filed an appeal of the Agency's May 24, 2006 letter of determination where the Agency concluded that it had not breached the settlement agreement. The Agency reasoned that provisions of the agreement that violated the law are unenforceable, and that Federal statutes prohibited it from carrying Complainant in active duty status after her sick leave expired. The Agency contends that the Civil Service Retirement System requires that employees who are approved for disability retirement either elect an annuity based on immediate separation with any sick leave balance calculated into the annuity, or an annuity based on separation after the exhaustion of any sick leave balance -- Complainant elected the latter.
In the initial appellate decision, Chostner v. Dep't of the Navy, EEOC Appeal No. 0120064093 (Oct. 11, 2007), the Commission affirmed the Agency's finding of no breach, specifically holding that the Agency was in substantial compliance with the provisions of the agreement which address Complainant's separation from employment. No requests for reconsideration were filed by either party. Complainant filed a subsequent appeal which forms the basis of the underlying request for reconsideration. In the subsequent appellate decision, the Commission (1) affirmed the Agency's final decision on the same grounds; (2) reminded Complainant that we were unable to re-adjudicate the matters decided in the previous appellate decision; and (3) found that Complainant failed to establish a breach with respect to provision (b) of the settlement agreement.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant requests that the Commission reconsider its appellate decision and find that the Agency breached the settlement agreement. Complainant argues that the decision includes both clearly erroneous interpretation of material fact and law, and, will have a substantial impact on the policies, practices or operations of the Agency. Complainant reiterates many of her arguments from her second appeal to support her contention that the Agency breached the agreement. Complainant maintains that the Agency voluntarily entered into the settlement agreement. Additionally, Complainant states that the Agency did not carry her in administrative leave status from June 23, 2003 to June 29, 2005, and then apply her sick leave balance until it was exhausted on April 3, 2006. Instead, Complainant argues that she was continued in an administrative leave status through February 24, 2006. Lastly Complainant contends that she never elected to exhaust her sick leave, and that the Agency never contacted her about how she wanted to apply her sick leave balance with respect to her separation.
Complainant requests that the Commission require the Agency to: (1) restore her sick leave and forward the necessary documentation to the Office of Personnel Management so that the sick leave can be used in the computation of her retirement annuity; (2) provide administrative leave to her to the date her FECA claim is approved; (3) place her in a Leave Without Pay status for 12 months from the date her Workers' Compensation claim was approved, (4) pay the $7500 performance awards provided in the settlement agreement; and (5) pay any associated attorney fees.
ANALYSIS AND FINDINGS
The Commission has consistently held that arguments raised for the first time on request for reconsideration cannot be considered at this stage of the proceedings. Choates v. Federal Deposit Insurance Corporation, EEOC Request No. 05970012 (May 21, 1998); Calloway v. Dep't of the Army, EEOC Request No. 05930911 (Mar. 17, 1994); Stiles v. Dep't of Transportation - FAA, EEOC Request No. 05940525 n.4 (Feb. 9, 1994); Valverde v. Department of Agriculture, EEOC Request No. 05900961 (Oct. 19, 1990). Therefore the Commission will not consider Complainant's arguments that: (1) she was continued in an administrative leave status through February 24, 2006, and (2) she never elected to exhaust her sick leave here.
Complainant is reminded 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), Ch. 9 � VII.A. (Nov. 9, 1999). Because Complainant has not put forth any arguments which the Commission finds to be material to the outcome of the underlying decision, or that were not previously considered in rendering the underlying decision, the Commission finds that Complainant has not demonstrated that the underlying decision involved a clearly erroneous interpretation of material fact or law. Neither has Complainant argued or demonstrated that the underlying decision would have a substantial impact on the policies, practices, or operations of the Agency.
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. 0120090335 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
__2/14/13________________
Date
2
0520120550
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120550