05A40604
07-15-2004
Barbara A. Jyachosky, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Barbara A. Jyachosky v. Department of the Navy
05A40604
July 15, 2004
.
Barbara A. Jyachosky,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Request No. 05A40604
Appeal No. 01A31104
Agency No. 97-00024-006; 00-49661-001
Hearing No. 100-A0-8146X
DENIAL OF REQUEST FOR RECONSIDERATION
Barbara A. Jyachosky (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider the
decision in Barbara A. Jyachosky v. Department of the Navy, EEOC Appeal
No. 01A31104 (February 26, 2004). 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).
In her underlying complaint, complainant alleged that the agency
discriminated against her in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq., on the bases of her sex, national origin
(Eastern European), age (over 50 at the relevant time), and in reprisal
for prior protected EEO activity. Complainant alleged that the agency
subjected her to unlawful discrimination when: 1) on April 25, 1997, she
was detailed, out of her position as Head of the Public Affairs Branch,
into a non-supervisory position in the Program Executive Office; 2)
between March 12, 1997, and April 25, 1997, her supervisor subjected her
to a hostile work environment; 3) since 1988 her first and second line
supervisors subjected her to a hostile work environment on the bases of
her sex, age, and prior EEO activity.
An EEOC Administrative Judge (AJ) issued a decision without a hearing
finding no discrimination. The AJ concluded that even viewing the
evidence in a light most favorable to complainant, there were no
genuine issues of material fact in dispute. The AJ further found that
complainant failed to establish, by a preponderance of the evidence,
that the actions alleged were sufficiently severe or pervasive to rise
to the level of actionable hostile work environment discrimination.
The agency's final order implemented the AJ's decision. On appeal, the
Commission found that a decision without a hearing was appropriate as
there were no genuine issues of material fact in dispute, and concurred
with the agency's decision finding no discrimination.
In her request for reconsideration, complainant submits a lengthy brief
reiterating the factual record and her contentions made on appeal.<1>
We find that complainant's arguments were fully addressed below,
and 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), and
it is the decision of the Commission to deny the request. We remind
complainant that a �request for reconsideration is not a second appeal
to the Commission.� Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614, at 9-17 (rev. November 9, 1999). The decision
in EEOC Appeal No. 01A31104 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
July 15, 2004
__________________
Date
1 Complainant also presents additional
evidence for the first time in her request for reconsideration. We note,
however, that the reconsideration criteria do not include submission
of new evidence. See 29 C.F.R. � 1614.405(b); Colatat v. United States
Postal Service, EEOC Request No. 05A21174 (February 2, 2003).