0520070138
03-01-2007
Martha Veal, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Martha Veal v. Department of the Navy
0520070138
3/1/07
.
Martha Veal,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Request No. 0520070138<1>
Appeal No. 0120060544
Agency No. 0157023091
DECISION ON REQUEST TO RECONSIDER
On November 2, 2006, Martha Veal (complainant) timely requested
reconsideration of the decision in Martha Veal v. Dr. Donald C. Winter,
Secretary, Department of the Navy, EEOC Appeal No. 0120060544 (October
18, 2006). EEOC regulations provide that the Commission may, in
its discretion, grant a request to reconsider any previous Commission
decision where the party demonstrates that: (1) the appellate 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).
In the previous decision, the Commission found that the agency was not
in breach of the settlement agreement (SA) between the parties signed on
December 11, 2001, which provided, inter alia, that, following details to
another position, she would return to her �previous position description.�
By the end of her details, her former position had been abolished due to
implementation of a commercial software product. The prior decision held
that the newly-created position was equivalent to her former position.
For this reason, the Commission determined that the agency was in
substantial compliance with the SA.
In her request, complainant again argued that her old position and
her new position were not equivalent, in that, her former position had
supervisory duties. Also, she reiterated her argument that the agency
deliberately detailed her away from her former position to deprive her
of opportunities for advancement.<2> Finally, complainant referred to
a separate complaint on appeal to the Commission and contended that the
prior decision might contradict a recent Supreme Court decision.<3> In
order to merit the reconsideration of a prior 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. The Commission's
scope of review on a request for reconsideration is narrow and is not
merely a form of a second appeal. Lopez v. Department of the Air Force,
EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS,
EEOC Request No. 05900850 (September 7, 1990). The Commission finds that
the complainant's request does not meet the regulatory criteria of 29
C.F.R. � 1614.405(b), in that, the request does not identify a clearly
erroneous interpretation of material fact or law, nor does it show that
the underlying decision will have a substantial impact on the policies,
practices or operation of the agency.
Complainant's arguments on request were previously addressed in the prior
decision. The Commission found that the two positions were comparable,
notwithstanding the lack of supervisory duties in the new position, and
that she presented no probative evidence that the agency detailed her
to other positions to interfere with opportunities for advancement. The
decision found that the agency showed that the positions were comparable,
that the record did not show hidden animus by the agency, and that the
agency was in substantial compliance with the SA.<4> Complainant's
contention regarding the Supreme Court's recent decision was advanced
without argument or discussion regarding how the previous decision was
in conflict. We note, however, that the matter before the Court did not
arise from a claim that an employer had breached a settlement agreement.
After a review of the complainant's request for reconsideration, 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. 0120060544 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request.
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
___3/1/07_______________
Date
1Due to a new data system, your case has been redesignated with the
above referenced appeal and request numbers.
2In response, the agency contended that, had she not been detailed,
complainant would have been subject to a reduction-in-force (RIF) action
with a possible downgrade. The agency's speculation of a RIF action
and other scenarios do not warrant consideration in this matter.
3Complainant's appeal, filed on August 14, 2006 and docketed as EEOC
Appeal No. 0120064758, will be addressed on its merits in a separate
decision.
4We note that complainant's former supervisory duties were limited and
consumed only a portion of her duties.