0520120120
05-17-2012
Marlo Bryant-Cunningham, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Marlo Bryant-Cunningham,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Request No. 0520120120
Appeal No. 0120112807
Agency No. PHI-10-0633-SSA
DENIAL
Complainant timely requested reconsideration of the decision in Marlo Bryant-Cunningham v. Social Security Administration, EEOC Appeal No. 0120112807 (Oct. 20, 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).
The previous decision affirmed the Agency's final decision, which concluded that Complainant was not discriminated against on the bases of race, color and in reprisal for prior protected EEO activity when she did not receive a performance award in April 2010. The previous decision also affirmed the Agency's dismissal of Complainant's claim of harassment for failure to state a claim.
In her request for reconsideration, Complainant renewed the arguments she had made in her initial appeal, argued that the Agency's legitimate, nondiscriminatory reason was not supported by the record, and argued that she had been subjected to harassment by her supervisor. She also argued that the Agency should have a policy of transferring employees who have filed an EEO complaint away from the supervisors who they have accused of discrimination in order to be protected from retaliation. The Agency filed a brief in opposition to Complainant's request for reconsideration in which it urged the Commission to deny Complainant's request. The Agency noted that Complainant was advancing the same arguments as in her initial appeal, and that Complainant's claim that she should have been transferred was not one of the accepted issues in the complaint.
We find that Complainant's request for reconsideration fails to show that our previous decision involved a clearly erroneous interpretation of material fact or law, or that it would have a substantial impact on the policies, practices or operations of the Agency. We remind Complainant that a "request for reconsideration is not a second appeal to the Commission." E.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007); EEO Management Directive for Part 1614 (EEO MD-110), Chap. 9, �VII.A. (Nov. 9, 1999). 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. Complainant has not done so here. Additionally, we find that Complainant's argument that employees who have engaged in protected EEO activity should be transferred to a different supervisor to protect them from retaliation is without merit. Such a policy could just as easily inhibit an employee's inclination to utilize the EEO process, especially if the employee does not wish to be transferred out of their position of record, or it is not practicable.
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. 0120112807 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
May 17, 2012
Date
2
0520120120
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120120