0520120335
07-06-2012
Tabitha K. Davol, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Tabitha K. Davol,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Request No. 0520120335
Appeal No. 0120110659
Hearing No. 531-2010-00174X
Agency No. HHSNIH02872009
DENIAL
Complainant timely requested reconsideration of the decision in Tabitha K. Davol v. Department of Health & Human Services, EEOC Appeal No. 0120110659 (January 23, 2012). 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 facts and procedural background are set forth in the previous decision and are incorporated herein by reference. We note the following salient facts: Complainant filed a formal complaint concerning (1) her receipt of a "Fully Successful" performance appraisal for January 2008 - December 2008; and (2) she did not receive a 2008 performance based award because her rating was "Fully Successful," not "Exceptional." An EEOC Administrative Judge (AJ) issued a decision without a hearing that dismissed claim (1) on the grounds that it was untimely and found no discrimination regarding claim (2) because it was undisputed that no employee with a "Fully Successful" rating received an award. The Agency issued a final order that adopted the AJ's decision. The previous decision affirmed the Agency's final order.
In her reconsideration request, Complainant reargued her contention that the AJ erred in dismissing claim (1) because it was part of an overall continuing claim of discriminatory conduct that involve her other EEO complaints. Complainant also stated, in part, that although she knew that she was being discriminated against at the time she received the performance appraisal at issue, she was not ready to file a complaint because (1) it was painful; (2) it is expensive; (3) it is time consuming; and (4) it takes a long time to resolve the matter. Thus, she felt justified in waiting until the Agency's discrimination had "broken [her] back," at which time she sought EEO counseling.
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. 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. Here, we find no evidence that Complainant has met the criteria for reconsideration. The Commission has long held that the time to contact an EEO Counselor is when a complainant reasonably suspects discrimination not when all the facts that would support the charge manifest themselves. Additionally, we find no support in our precedent for extending the time limitation period due to the factors raised by Complainant in her request.
Finally, with regard to Complainant's contention that claim (1) should be viewed in a larger context with her other EEO complaints, we initially note that the record indicates that the complaint at issue merely concerns the two claims referenced above, not a claim of ongoing harassment. Furthermore, even if Complainant, in this complaint, had raised a claim that she was subjected to an ongoing hostile work environment, we note that the Supreme Court has held that a complaint alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002). The Court further held, however, that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. at 113. Claims involving events such as termination, failure to promote, denial of transfer, or refusal to hire are clearly defined and are considered to be discrete acts. Id. at 114. With a discrete act, each incident of discrimination constitutes a separate actionable "unlawful employment practice." Id. In the present case, we find that claim (1) is a discrete act and therefore was properly time barred.
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. 0120110659 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
____7/6/12______________
Date
2
0520120335
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120335