05A60895
08-10-2006
Shirley A. Fialkowski, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Shirley A. Fialkowski,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A60895
Appeal No. 01A61457
Hearing No. 130-2005-00164X
Agency No. 200I-0521-2004104242
DENIAL
Complainant timely requested reconsideration of the decision in Shirley A.
Fialkowski v. Department of Veterans Affairs, EEOC Appeal No. 01A61457
(June 30, 2006). 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 the appellate decision complainant alleged that she was discriminated
against based on race (White), age (DOB 7/1942), and in reprisal for prior
EEO activity when she was not selected for the position of Nurse Case
Manager, Surgery, in favor of a younger 51 year old Black woman. Following
a hearing before an EEOC Administrative Judge (AJ), the AJ issued a
decision finding no discrimination. The agency adopted the AJ's decision
and complainant appealed. The Commission affirmed the AJ's decision
finding no discrimination. Specifically, the Commission found that
although complainant had established a prima facie case of discrimination,
the agency had articulated legitimate nondiscriminatory reasons for its
actions, namely, that complainant's interview was poor and the selectee had
case manager experience while complainant did not. The Commission found
that complainant failed to show that the agency's reasons were pretext for
discrimination.
In her request for reconsideration, complainant contends that the appellate
decision will have a substantial impact on the policies, practices, or
operations of the agency. She contends that the AJ recommended a change in
policy to insure that panel members not have knowledge of applicants' prior
EEO activity. Complainant contends that in her case, two of the panel
members were aware of her prior EEO activity. Complainant also contends
that her related case management experience was in 1999, while the
selectee's was in 1997. Finally, complainant contends that she was told
that as required by the union, in-house employees had preference in hiring
over applicants without federal service. Complainant maintains that that
policy was not followed in this instance.
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 that complainant has failed to show that the appellate
decision involved a clearly erroneous interpretation of material fact or
law or that the decision will have a substantial impact on the policies,
practices, or operations of the agency. Specifically, we find that
complainant still has not shown that she was better qualified than the
selectee. In fact, the record shows that complainant received the lowest
score of all of the applicants. Further, with respect to complainant's
contentions on appeal, complainant has provided no proof that the panel
rated her lower based on her prior EEO activity, race or age. The
Commission finds that other than complainant's own contentions, she has not
provided any information as to why the timing of the case management
experience was important or provided information regarding the union's
policy of hiring in-house employees. Accordingly, the decision in EEOC
Appeal No. 01A61457 remains the Commission's final 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 (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
_____8-10-06_____________
Date