0520120046
04-13-2012
Rose Merchant-Bennett, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Rose Merchant-Bennett,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Request No. 0520120046
Appeal No. 0120100050
Hearing No. 570-2008-00537X
Agency No. 2007-21385-FAA-02
DENIAL
Complainant timely requested reconsideration of the decision in Rose Merchant-Bennett v. Department of Transportation, EEOC Appeal No. 0120100050 (September 15, 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 our previous decision, the Commission found that the EEOC Administrative Judge (AJ) properly issued a decision without a hearing in which the AJ found that Complainant failed to prove that the Agency discriminated against her on the basis of sex (female) when it did not select her for a Supervisory Air Traffic Control Specialist, Manager of Evaluations, position. The Commission determined that, although the Selecting Official added a qualification (operational supervision) requirement to the selection process that was not in the vacancy announcement, Complainant failed to provide any evidence from which it could be concluded that the Selecting Official influenced the selection process because of a discriminatory motive. The Commission further determined that Complainant failed to provide evidence from which it could be concluded that the selectee was preselected for the position because of his sex.
In her request for reconsideration, Complainant reiterates arguments she raised before the AJ and on appeal, including her contention that the Selecting Official preselected the selectee and introduced a new qualification standard in the process to exclude Complainant from consideration. Complainant also reiterates her argument that the selecting officials failed to properly credit Complainant for her supervisory experience. Additionally, Complainant argues that the AJ erred when she failed to grant her request to compel the Agency to produce interview notes from one of the three selection panelists.
Upon review, we find that our previous decision properly found that Complainant failed to provide any evidence from which a reasonable fact-finder could conclude that her non-selection was motivated by unlawful discrimination. We further find that that Complainant failed to establish that the AJ abused her discretion when she denied Complainant's Motion to Compel Discovery. In so finding, we concur with the AJ's finding that a selection panelist's interview are not relevant to Complainant's non-selection claim because Complainant was not interviewed for the position. We note that AJs have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, issue sanctions, or compel the testimony of witnesses. See 29 C.F.R. � 1614.109(e).
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. 0120100050 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 13, 2012
Date
2
0520120046
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120046