Virginia M. Curry, Complainant,v.Alberto Gonzales, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity CommissionAug 22, 2005
05a51070 (E.E.O.C. Aug. 22, 2005)

05a51070

08-22-2005

Virginia M. Curry, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.


Virginia M. Curry v. Department of Justice (Federal Bureau of

Investigation)

05A51070

08-22-05

.

Virginia M. Curry,

Complainant,

v.

Alberto Gonzales,

Attorney General,

Department of Justice

(Federal Bureau of Investigation),

Agency.

Request No. 05A51070

Appeal No. 01A45791

Agency No. F-03-5744

DECISION

On July 7, 2005, Virginia M. Curry (complainant) timely requested

reconsideration of the decision in Virginia M. Curry v. John Ashcroft,

Attorney General, Department of Justice (Federal Bureau of Investigation),

EEOC Appeal No. 01A45791 (June 10, 2005). 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 previous 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).

Complainant claimed that the agency discriminated against her on the

bases of national origin (Italian), sex (female), age (D.O.B. 11/15/54),

and reprisal for prior EEO activity with regard to (a) removal from a

temporary assignment in January 2002; (b) retention of prior EEO activity

in her OPF; (c) comments made during an investigation by the Office

of Professional Responsibility (OPR); and (d) a five-day suspension.

The previous decision found that the agency did not discriminate against

her, in that, she failed to demonstrate that the agency's legitimate

reasons were a pretext, or sham, for discrimination. Specifically, the

agency stated that, with regard to (a), complainant failed to perform

her position and respond to pages and calls from supervisors and was

removed from the assignment; with regard to (b), prior to 1992, the

agency had no policy about documents retained, while current policy

mandated their removal; and, as to (c) and (d), the investigation

examined complainant's behavior during her temporary assignment for

which she received a suspension.<1>

Complainant filed a request that the Commission reconsider its previous

decision. In support, complainant contended that the supervisor

who initiated the investigation, while a close personal friend, was

untruthful; that the investigation took place after her EEO complaint;

that she had a responsible position; and that the agency's culture

regarding females was poor.

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.

None of the points raised by complainant describe an error of fact

or law. Other than general arguments, complainant does not point

to any false statement by the supervisor, and the argument that the

supervisor's statements were the same as agency managers does not render

the statements untrue. The supervisor's decision to appoint an outside

investigator to eliminate personal bias was reasonable in light of her

friendship with complainant. Complainant has not shown that the agency's

actions were based on illegal considerations or discriminatory animus.

CONCLUSION

After review of 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. 01A45791 remains the

Commission's final decision. There is no further right of administrative

appeal on the decision of the Commission on a request for reconsideration.

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

_____08-22-05_____________

Date

1The decision found, also, that while retention of EEO documents in

her OPF and mention by the OPR Investigator were inappropriate, there

was no evidence that these matters influenced the investigation or its

resultant penalty.