0520110346
05-27-2011
Carrie Smith-Graef, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Carrie Smith-Graef,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520110346
Appeal No. 0120103415
Hearing No. 410-2010-00001X
Agency No. DON (MC) 08-67004-02775
DENIAL
Complainant timely requested reconsideration of the decision in Carrie
Smith-Graef v. Department of the Navy, EEOC Appeal No. 0120103415
(Feb. 10, 2011). 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 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 previous decision affirmed the Agency’s final order, which
implemented an EEOC Administrative Judge’s (AJ) summary judgment
decision. 1 The AJ determined that the Agency did not discriminate
against Complainant on the basis of reprisal when a Labor Employee
Relations Supervisor (LER Supervisor) indicated to a prospective employer
that Complainant’s leave issues were related to her mother’s illness
and that she had received two previous Letters of Requirement concerning
her excessive use of leave. Even though the AJ found that Complainant
established a prima facie case of reprisal, the Agency articulated a
legitimate, non-retaliatory reason for providing the leave information
to Complainant’s prospective employer. The AJ found that the LER
Supervisor had responded to an inquiry initiated by the prospective
employer regarding Complainant’s leave use, and the information
that the LER Supervisor provided was accurate and routinely provided
in such inquiries. The AJ found that Complainant did not show that the
Agency’s response to the prospective employer’s inquiry was motivated
by retaliatory intent.
In her request to reconsider, Complainant argues that the previous
decision clearly erred in interpreting material facts, principally that
the LER Supervisor deviated from personnel policy or past practice
by responding to the prospective employer’s information request,
rather than Complainant’s direct supervisor. Complainant provides no
citation or evidence in the record to show that the LER Supervisor’s
responding to an inquiry from an outside prospective employer constituted
a deviation from an established policy or past practice to suggest a
retaliatory motive.
After reconsidering 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. 0120103415 remains
the Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
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
_5/27/11_________________
Date
1 Although the first page of the previous decision stated that the
Commission vacated the Agency’s final order, the decision makes clear
throughout and in the conclusion that it actually affirmed the Agency’s
final action implementing the AJ’s decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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