05991102
05-24-2001
Yasaman Contractor, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Army & Air Force Exchange Service) Agency.
Yasaman Contractor v. DOD (Army & Air Force Exchange Service)
05991102
May 24, 2001
.
Yasaman Contractor,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Army & Air Force Exchange Service)
Agency.
Request No. 05991102
Appeal No. 01970386
Agency No. 95-138
Hearing No. 310-96-5086X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Yasaman
Contractor v. DOD (Army & Air Force Exchange Service), EEOC Appeal
No. 01970386 (July 30, 1999). EEOC Regulations provide that the
Commission may, in its discretion, 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 record reveals that complainant was employed by the agency as a
Computer System Analyst, UA-12. She filed a formal complaint dated
May 30, 1995, alleging that she was subject to discrimination based
on mental disability (clinical depression) and reprisal for prior
EEO activity when she was notified on April 24, 1995, that she would
be terminated by the agency with an effective date of December 16,
1993. <1> The complaint was investigated and ultimately referred to an
Administrative Judge (AJ) of the Equal Employment Opportunity Commission
(EEOC or Commission). In a recommended decision dated September 12,
1996, the AJ held that although complainant established that she was
an individual with a disability, she failed to establish a prima facie
case of disability discrimination because she did not show where she was
treated differently than someone outside of her protected group. The AJ
also found that complainant established a prima facie case of reprisal,
but she failed to show that the reason articulated by the agency for
her termination was pretext for intentional discrimination.
Addressing the reason articulated by the agency for terminating
complainant, the AJ noted that it was standard agency policy to terminate
the employment of an individual who had been on LWOP for more than a year.
The AJ also found that because the agency was engaged in an active
search to find complainant another position, it did not terminate
her in December of 1994 when her one year anniversary date of being
on LWOP occurred. Moreover, the AJ found that the agency attempted to
assign complainant to three lower graded positions, but that complainant
rejected them all. Finding that complainant either failed in her attempt
to establish a prima facie case of discrimination or to show pretext,
the AJ recommended a finding of no discrimination. In a final agency
decision dated September 24, 1996, the agency adopted the recommended
finding of no discrimination. In its previous decision, the Commission
held that the AJ accurately set forth the facts and laws applicable in
this case. Accordingly, the Commission affirmed the agency's finding
of no discrimination.
In her request for reconsideration, complainant contends that the
Commission made several factual mistakes in its previous decision.
In this regard, complainant notes that the date that she was offered the
two lower level positions was on December 12, 1994 instead of December 12,
1995 as indicated in the previous decision. Complainant also states that
contrary to the statement in our previous decision, she did not ask to
be put on LWOP in December of 1992, and that her medical examination was
in May 1994 instead of 1993 as stated in our prior decision. Moreover,
complainant notes that the gender of the AJ was male instead of female
as indicated in our prior decision. The rest of arguments raised
by complainant in her reconsideration is mainly a reiteration of the
arguments she made on appeal. In this regard we note that complainant
argues that the agency's offer of a lower graded position, which would
have resulted in an eighty percent cut in her salary, was an act of
reprisal rather than an effort to reassign her to another directorate.
Complainant also contends that the agency accused her of making bomb
threats and delayed in responding to her request to return to work in
order to delay her recovery.
After a review of the complainant's request for reconsideration, 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. Several of
the factual errors that complainant pointed out in her request for
reconsideration are harmless errors and did not undermine the legal
findings made by the AJ and the Commission in its previous decision.
Specifically, we find that complainant failed to show that she was treated
differently from someone outside of her protected group or to show that
agency's policy of terminating employees who had been on LWOP for more
than one year was applied in a discriminatory fashion. The decision
in EEOC Appeal No. 01970386 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this 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
May 24, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 In her complaint, complainant also listed race (Asian), religion
(Moslem), national origin (Iranian), and sex (female) as bases of her
complaint. However, during the investigatory stage of the complaint,
she abandoned these bases. It is also noted that complainant had been
on Leave Without Pay from December 16, 1993; thus, her termination was
made retroactive to that date.