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.