05a00876
02-28-2001
Lois R. Hines, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Lois R. Hines v. Department of Labor
05A00876
02-28-01
.
Lois R. Hines,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Request No. 05A00876
Appeal No. 01996086
Agency Nos. 8-04-040; 8-04-092
DECISION ON REQUEST TO RECONSIDER
On June 1, 2000, Lois R. Hines (complainant) timely initiated a request to
the Equal Employment Opportunity Commission (the Commission) to reconsider
the decision in Lois R. Hines v. Alexis M. Herman, Secretary, Department
of Labor, EEOC Appeal No. 01996086 (May 12, 2000). EEOC regulations
provide that the Commissioners may, in their discretion, reconsider any
previous decision where the party demonstrates that: (1) the previous
decision involved a clearly erroneous interpretation of material fact or
law; or (2) the decision will have a substantial impact on the policies,
practices or operation of the agency. 29 C.F.R. � 1614.405(b).<1>
For the reasons set forth below, the complainant's request is denied.
The issue presented is whether complainant's request meets the criteria
for reconsideration.
Complainant filed formal complaints on December 18, 1997, and March 23,
1998, alleging discrimination based on race (black), sex, age (60),
and in reprisal for prior EEO activity when she was not promoted from
her GS-6 position and when her position was not upgraded by a desk audit.
Following an investigation, complainant requested a final agency decision
(FAD), and the agency issued a FAD, finding no discrimination as to
both complaints. On appeal, the Commission affirmed the agency's FAD.
Complainant's supervisor (S1) acknowledged that complainant took on extra
duties and recommended her for a promotion, but the Regional Administrator
(RA) demurred pending a reorganization of the unit and availability
of a position. Subsequently, when a position was open, complainant
applied and was promoted to GS-7 in December 1997. In addition, S1
recommended complainant for a cash award. Complainant also alleged
that a desk audit in November 1997 failed to properly assess her duties
and upgrade her position. The agency stated that the desk audit was
conducted in the same manner as other desk audits and that management
did not interfere in the review. The FAD found that complainant did
not demonstrate that the agency's actions were based on prohibited
considerations of discrimination.
Complainant has filed a request that the Commission reconsider its
previous decision. Complainant questions whether the file was thoroughly
reviewed in addition to the agency FAD and states that a management
official was asked to resign. The agency filed comments arguing that
complainant's request does not meet the criteria for reconsideration.
In order to merit the reconsideration of a prior Commission decision,
the requesting party must submit written argument that tends to establish
that at least one of the criteria of 29 C.F.R. � 1614.405(b) is met.
A request for review is not a second opportunity for appeal, and the
Commission's scope of review on a request for reconsideration is narrow.
Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989); Regensberg v. USPS, EEOC Request No. 05900850
(September 7, 1990).
When an appeal is filed from an agency's FAD, the Commission's
regulations require that it make a de novo review. 29 C.F.R. �
1614.405(a). The case file in this matter was given a complete and
independent review, and all submissions on appeal were considered,
including complainant's argument that S1 had promised her an upgrade
so that she would receive a promotion. Claims, such as those at issue
herein, are examined under the tripartite analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Once the
agency articulated a legitimate, nondiscriminatory explanation for
its actions, the burden returned to complainant to demonstrate that
the agency's articulated reason was a pretext for discrimination, i.e.,
complainant must demonstrate that the agency's action was more likely than
not motivated by legally impermissible criteria, such as race, sex, age,
or reprisal. Absent a showing that the agency's articulated reason was
used as a tool to discriminate against her, complainant cannot prevail.
After review of the case file and submissions on appeal, the previous
decision determined that the evidence of record did not establish pretext
and that the agency's FAD correctly stated the facts and applied the
applicable principles of law.
With regard to complainant's assertion that an agency official was asked
to resign following an internal review in March 2000, she has not shown
how this relates to her claims of discrimination. Moreover, this event
occurred well after the events at issue herein.
CONCLUSION
After a review of the complainant's request for reconsideration, the
agency's reply thereto, the previous decision, and the entire record,
the Commission finds that the complainant's request fails to meet any
of the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of
the Commission to deny the complainant's request. The decision of
the Commission in EEOC Appeal No. 01996086 (May 12, 2000) remains
the Commission's final decision. There is no further right of
administrative appeal from a decision of the Commission on a request
for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___02-28-01_______________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.