05970080
11-23-1998
Juanita Thompson, Appellant, v. Richard S. Cohen, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Juanita Thompson v. Department of Defense
05970080
November 23, 1998
Juanita Thompson, )
Appellant, )
) Request No. 05970080
v. ) Appeal No. 01953456
) Agency No. CA-94-008
Richard S. Cohen, ) Hearing No. 220-94-5301X
Secretary, )
Department of Defense )
(Defense Logistics Agency), )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On October 23, 1996, Juanita Thompson (hereinafter referred to
as appellant) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision in
Juanita Thompson v. William J. Perry, Secretary, Department of Defense
(Defense Logistics Agency), EEOC Appeal No. 01953456 (September 30, 1996).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy, 29
C.F.R. �1614.407(c)(2); and the decision is of such exceptional nature as
to have substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
For the reasons set forth herein, the appellant's request is denied.
ISSUE PRESENTED
The issue presented is whether the previous decision properly determined
that the agency did not discriminate against appellant on the bases
of race/color (black), sex, and age (DOB 2-25-33) with regard to her
performance appraisal that she received in February 1994.
BACKGROUND
Appellant filed her formal complaint on April 29, 1994.<1> Following
an investigation, she requested a hearing, and a hearing was held in
November 1994 before an EEOC Administrative Judge (AJ). In January 1995,
the AJ found no discrimination, and the agency adopted that finding
as its final decision. On appeal, the previous decision affirmed the
agency's final decision.
At the time of the events herein, appellant worked as a Secretary at
the agency's facility in Columbus, Ohio.<2> In her complaint, she
alleged discrimination because the February 1994 performance appraisal
raw score of 3.8 points was 0.8 points less than her previous performance
appraisal received in May 1993; both scores resulted in an overall rating
of "highly successful." In particular, appellant contested the lowered
ratings for typing and file maintenance.
Agency managers testified that appellant's rating reflected her
performance for the period in question. Specifically, they stated that
her typing was not of sufficient quality to merit a higher rating and
that she failed to maintain certain files as directed by her supervisors.
The AJ found that appellant failed to established a prima facie case,
since she did not show that she suffered an adverse action that was
based on her race, color, sex, or age. The previous decision agreed
with the AJ's decision. The decision also stated that appellant's
appeal appeared to reargue the Commission's earlier determination that
the agency properly dismissed three other allegations. See fn. 1.
In her request for reconsideration (RTR), appellant appears to repeat
the arguments made on appeal concerning the dismissed allegations and
appears to allege additional discrimination following the filing of the
instant complaint, especially with regard to changes in her position.
The agency's comments argue that appellant's RTR does not meet the
standards for reconsideration and that appellant raises other matters
not at issue herein.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence that tends to establish at least one of the criteria of 29
C.F.R. �1614.407(c). The Commission's scope of review on a request for
reconsideration is narrow, and the party's request must contain specific
information, argument, or evidence that meets one of the referenced
criteria. A request for reconsideration is not a form for renewed appeal.
Regensberg v. USPS, EEOC Request No. 05900850 (September 7, 1990).
It is an opportunity for a party to submit newly discovered evidence not
previously available, to establish substantive error in the previous
decision, or to explain the exceptional nature of the case at hand.
Foley v. USPS, EEOC Request No. 05910894 (October 31, 1991); Lyke v. USPS,
EEOC Request No. 05900769 (September 27, 1990). Having reviewed the
record and submissions of the parties, we find that appellant's request
fails to meet the criteria of 29 C.F.R. �1614.407(c).
In general, claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973). Loeb v. Textron, 600 F.2d 1003, 1212 (lst
Cir. 1979). The established order of analysis, in which the first step
normally consists of determining the existence of a prima facie case,
need not be followed in all cases. Where the agency has articulated
a legitimate, nondiscriminatory reason for the personnel action(s) at
issue, the factual inquiry can proceed directly to the third step of
the McDonnell Douglas analysis, the ultimate issue of whether appellant
has shown by a preponderance of the evidence that the agency's actions
were motivated by discrimination. St. Mary's Honor Center v. Hicks, 509
U.S. 502 (1993); U.S. Postal Service Board of Governors v. Aikens, 460
U.S. 711, 715-716 (1983); see Hernandez v. Department of Transportation,
EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of
Health and Human Services, EEOC Request No. 05900467 (June 8, 1990).
Under the ADEA, appellant must establish that age was a determining factor
in the agency's action against her. Hazen Paper Company v. Biggins,
507 U.S. 604, 610 (1993).
Here, we find that the agency has articulated legitimate,
nondiscriminatory reasons for its actions, that is, appellant's
performance appraisal accurately reflected her work during the period
of the appraisal. The AJ found that "the appraisal was based on [her
supervisors'] collective knowledge of the Complainant's performance
during the time period in question."
Once the agency has articulated a legitimate, nondiscriminatory reason
for its action, the burden returns to appellant to demonstrate that the
agency's explanation for its action is a pretext for discrimination.
We find that appellant has failed to demonstrate, and the record does
not reveal, that the agency's reason was pretextual or that its action
was based on prohibited considerations or bias. We agree with the AJ's
finding that appellant has not shown that the appraisal ratings were
based on her race/color, sex, or age.
With regard to any allegations of discrimination subsequent to the issue
before us herein, our regulations require that a complainant contact an
EEO counselor within 45 days of the event(s). 29 C.F.R. �1614.105 et seq.
Appellant, having filed at least one complaint and pursued two appeals,
appears to be aware of the timeliness requirements in our regulations.
Appellant refers to ongoing litigation in her RTR and may be pursing
these matters in the EEO process.
Finally, we note that appellant's RTR also raises a complaint about
the processing of her complaint. To the extent that her concerns are
directed to the processing of the complaint and not the dismissal of the
other allegations, she is advised that she must address these matters
pursuant to EEOC Management Directive 110 (October 22, 1992) (MD-110).
Appellant should direct her concerns to the agency officials responsible
for the quality of complaint processing, who must attempt to resolve
the dissatisfaction. MD-110, Chapter 4, Section 8.
For the above reasons, the Commission finds that appellant's request
does not meet the regulatory criteria of 29 C.F.R. �1614.407(c).
The Commission finds that the agency did not discriminate against
appellant. Accordingly, the Commission denies appellant's request to
reconsider the previous decision.
CONCLUSION
After a review of the appellant's request for reconsideration, the
agency's reply thereto, the previous decision, and the entire record,
the Commission finds that the appellant's request fails to meet any of
the criteria of 29 C.F.R. �1614.407(c). It is therefore the decision
of the Commission to deny the appellant's request. The decision in EEOC
Appeal No. 01953456 (September 30, 1996), as modified herein, remains the
Commission's final decision. There is no further right of administrative
appeal on a decision of the Commission on a Request for Reconsideration.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
NOV 23, 1998
Date Frances M. Hart
Executive Officer
1The agency's dismissal of three other allegations in the complaint were
affirmed by the Commission. EEOC Request No. 05950260 (May 5, 1995),
affirming, EEOC Appeal No. 01943682 (November 30, 1994).
2Appellant stated that she retired in May 1996.