05A30414_rev
03-06-2003
________________, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
________________ v. Department of Justice
05A30414
March 6, 2003
.
________________,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Request No. 05A30414
Appeal No. 01A14612
Agency Nos. F-98-5013, F-98-5016, F-98-5057,
F-98-5080 & F-98-5121
DENIAL OF REQUEST FOR RECONSIDERATION
_____________________ (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in ___________ v. Department of Justice, EEOC Appeal
No. 01A14612 (December 23, 2002). 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).
After a review of 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). In five formal
complaints, complainant alleged that she was discriminated against
on the basis of sex (female) and subjected to retaliation for prior
EEO activity when she was subjected to a hostile work environment
and disparate treatment between April 1997 and November 1997. In the
previous decision, the Commission concluded that complainant failed to
establish that she was discriminated against or subjected to retaliation.
In her request for reconsideration, complainant contends that the
appellate decision involves clearly erroneous interpretations of material
facts and law and that it will have a substantial impact on the policies,
practices and operations of the agency. In support of this contention
she essentially reiterates arguments raised on appeal and throughout
the investigation, noting that management officials were dishonest
throughout the investigation and that the evidence supports her claims.
She also argues, among other things, that because of the complex nature
of her case and the voluminous nature of the investigation, once it
was assigned to an attorney it should have taken 12 to 18 months for a
decision to be issued, rather than the mere two months that it took.
After a careful review of the entire record, we find that complainant
failed to establish either of the criteria for granting a request for
reconsideration. The arguments that she raises were previously considered
when rendering the appellate decision. She argues, for example, that the
relevant management official (RMO2) was aware of complainant's prior EEO
activity as of June 9, 1997 and that the previous decision's finding to
the contrary is in error. Complainant points to documents created by RMO2
which indicate that on June 9, 1997, RMO2 made notations during a meeting
she had with complainant which include the statement that complainant
was �aware of the EEO and EAP programs.� Complainant further notes that
RMO2's type-written version of these meeting notes does not include this
statement and concludes that this proves that RMO2 knew as of June 9,
1997 that complainant had contacted an EEO counselor on June 9, 1997.
A review of the file establishes that complainant made this argument
on appeal and that the appellate decision nonetheless concluded that
RMO2 did not know of complainant's prior protected activity until June
16, 1997. This conclusion is not erroneous. The fact that RMO2 knew
on June 9, 1997 that complainant was aware of the EEO and EAP programs
does not establish that she knew complainant had engaged in protected
EEO activity at that point.
Furthermore, complainant's contention that the previous decision was
erroneous because it was issued too quickly is without merit. As noted
in the decision, the entire investigative file, including complainant's
lengthy appeal brief and the documents attached to it were carefully
reviewed prior to the issuance of the decision. Complainant failed to
demonstrate that the decision involved a clearly erroneous interpretation
of material law or fact, or that it will have a substantial impact on
the policies, practices or operations of the agency. Accordingly, it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01A14612 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
March 6, 2003
Date