0520110420
07-12-2011
Shirley A. D'Errico, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (U.S. Coast Guard), Agency.
Shirley A. D'Errico,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(U.S. Coast Guard),
Agency.
Request No. 0520110420
Appeal No. 0120093840
Agency No. HS-07-USCG-001105
DENIAL
Complainant timely requested reconsideration of the decision in Shirley A. D'Errico v. Department of Homeland Security, EEOC Appeal No. 0120093840 (March 31, 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 prior decision, we found that the Agency properly dismissed the complaint for failure to state a claim. Complainant alleged that her Lieutenant Commander subjected her to harassment in retaliation for her prior EEO activity. She asserted that her submission of a statement for an administrative investigation, which became the subject of a co-worker's EEO complaint, constituted prior protected EEO activity. Upon reviewing the statement, regarding the Agency's internal investigation of another employee's time and attendance, the Commission concluded that Complainant had not alleged a violation of anti-discrimination laws. Therefore, Complainant's statement was not considered participation in EEO activity.
In her request for reconsideration, Complainant asserts that she was retirement eligible and over the age of forty. Further, she contends that she was forced to use leave for EAP counseling, not permitted to have a union representative with her during a meeting, issued an unsatisfactory interim appraisal, and transferred to another location. Complainant states that "[t]his is a clear case of age discrimination . . . ."
After reconsidering 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 Commission finds it inappropriate for Complainant to raise age as a new basis for the first time on appeal. Complainant is advised that if she wishes to pursue any additional claims she should contact an EEO Counselor. The decision in EEOC Appeal No. 0120093840 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
July 12, 2011
__________________
Date
2
0520110420
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110420