0520120054
04-05-2012
Linda J. Galloway, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Linda J. Galloway,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Request No. 0520120054
Appeal No. 0120112290
Hearing No. 430-2008-00274X
Agency No. PHI-07-0122-SSA
DENIAL
Complainant timely requested reconsideration of the decision in Linda J. Galloway v. Social Security Administration, EEOC Appeal No. 0120112290 (August 19, 2011). 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 her formal EEO complaint, Complainant alleged that the Agency subjected her to discrimination on the bases of age, color, race, and in reprisal for prior EEO activity when it placed her on a Performance Assistance Plan and Opportunity to Perform Successfully Plan, removed her, and harassed her by inadequately training her, denying her requests to decrease work programs, and giving her negative reviews. Complainant also filed a grievance in which she alleged that the Agency removed her because of her race.
In our previous decision, the Commission found that an EEOC Administrative Judge (AJ) properly dismissed Complainant complaint because the claims in Complainant's EEO complaint are inextricably intertwined with the removal claim Complainant raised in a negotiated grievance procedure that permits allegations of discrimination.
In her request for reconsideration, Complainant contends that, during arbitration, she was never told that she would not be able to litigate her age discrimination and reprisal claims. Complainant also makes arguments and submits evidence regarding the merits of her complaint.
Upon review, we note that, although Complainant did not cite age, color, or reprisal as discrimination bases for her grievance, she does not dispute that she was entitled to have raised these bases or additional issues intertwined with her removal. We note that the determining factor is not whether Complainant actually raised a particular issue or basis of discrimination, but rather whether an issue of discrimination could have been raised in the grievance procedure. See 29 C.F.R. � 1614.301(a). As such, we find that our previous decision properly affirmed the AJ's dismissal of Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(4).
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; 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.
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. 0120112290 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
April 5, 2012
Date
2
0520120054
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120054