0520110119
02-03-2011
Wanda Bingham, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
Wanda Bingham,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Request No. 0520110119
Appeal No. 0120102275
Hearing No. 420-2009-00052x
Agency No. HS-08-FEMA-00156
DENIAL OF REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in Wanda
Bingham v. Department of Homeland Security (Federal Emergency Management
Agency), EEOC Appeal No. 0120102275 (April 28, 2010). EEOC Regulations
provide that the Commission may, in its discretion, grant a request
for reconsideration (RTR) of 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).
ISSUE PRESENTED
The issue presented in Complainant's RTR is whether it meets the criteria
set out in EEOC Regulation 29 C.F.R. � 1614.405(b).
BACKGROUND
In the decision on appeal, the Commission affirmed the Agency's Final
Order, that adopted the findings of an EEOC Administrative Judge (AJ),
that it did not discriminate against Complainant. Complainant alleged
that the Agency harassed her in reprisal for prior protected EEO
activity when: (1) she discovered that her co-workers' performance
ratings were changed, after the appeal deadline, from "Proficient" to
"Superior," and they received upgrade increases, but she was denied
the same opportunity; (2) on October 29, 2007, she was denied the right
to appeal her performance rating, and management denied her manager's
request that she receive an in-grade increase; (3) between October 19
and October 29, 2007, management believed that she was the source of
the rumors relating to drug use by two supervisors; and, (4) on April 2,
2008, the Agency wrongly terminated her from her position.
The appellate decision found that the AJ stated the relevant facts
of record, correctly explained the legal analysis for a claim of
harassment based on retaliation, and properly found that the Agency did
not discriminate against Complainant, in that, she was not harassed or
subjected to a hostile work environment. Significantly, the appellate
decision found that Complainant did not establish, nor did the record
reveal, that she had ever engaged in prior protected EEO activity,
which negated her claim of reprisal.1 As to her termination, the
previous decision pointed to her managers' descriptions of intimidation
and bullying behavior towards a supervisor; her use of profanity
when referencing the supervisor; generally disrupting the workplace;
unauthorized possession of pages from a supervisor's personal journal;
and failing to follow directions.
CONTENTIONS
In her RTR, Complainant contends "that the EEO counselor . . . who
reviewed EEO complaints, tainted the process" by breaching confidentiality
and refusing to process claims. She also attached emails to and from
unidentified persons discussing unrelated events.2
The Agency did not provide separate comments in opposition.
ANALYSIS AND CONCLUSIONS
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 not merely
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 Complainant's
request does not meet the regulatory criteria of 29 C.F.R. � 1614.405(b),
in that, the RTR does not address our previous decision, identify a
clearly erroneous interpretation of material fact or law, or show that
the underlying decision will have a substantial impact on the policies,
practices, or operations of the agency. If Complainant is dissatisfied
with the processing of her complaint by the Agency, we refer her to the
Agency official responsible for the quality of complaints processing.
See 29 C.F.R. � 1614.107(a)(8); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614, 5-25 - 5-26 (November 9, 1999).
CONCLUSION
After review of the previous decision and the entire record, the
Commission finds that Complainant's RTR 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. 0120102275 remains
the Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHTS ON A REQUEST FOR RECONSIDERATION
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
___2/3/11_______________
Date
1 Prior protected activity is action taken in opposition (opposing a
practice made unlawful by an EEO statute) or participation in EEO activity
(filing a charge, testifying, assisting, or participating in any part of
the EEO process). See Section 8: Retaliation, EEOC Compliance Manual.
This document is available on the Commission's website at www.eeoc.gov.
2 Complainant requested additional time to develop her brief; however,
the Commission does not grant extension on RTRs.
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0520110119
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520110119