0520140403
03-27-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Request No. 0520140403
Appeal Nos. 0120120544, 0120120545
Hearing Nos. 430-2010-00161X, 430-2011-00012X
Agency Nos. ARARL09FEB00564, ARARL09JUN02445
DENIAL
Complainant timely requested reconsideration of the decision in Complainant v. Department of the Army, EEOC Appeal No. 0120120544 (May 9, 2014). 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(c). For the following reasons Complainant's request for reconsideration is DENIED.
BACKGROUND
On May 20, 2009, Complainant filed an EEO complaint, docketed as ARARL09FEB00564 (referred to herein as Complaint 1) alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On February 13, 2009, she became aware that the Agency did not select her for the Management Analyst position, DJ-343-2, Support Management Division, Army Research Office, under Vacancy Announcement NEAC08102801; and 2. Since April 15, 2008, the Agency continually exposed her to unhealthy working conditions due to cold air ventilation problems which resulted in job related health problems, use of leave, and placement on a special leave policy.
On August 12, 2009, Complainant filed an EEO complaint, docketed as ARARL09JUN02445 (referred to herein as Complaint 2) alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On or about April 28, 2009, the Acting Director of ESD and the Team Leader Secretary did not allow her to participate in the planning, scheduling, and logistics of ESD's Mechanical Sciences Program Review, which historically had been one of her assigned duties. The Agency dismissed Complaint 2 prior to an investigation for failure to state a claim, however on April 21, 2010, the Office of Federal Operations remanded the above claim for an investigation. Robinson v. Department of the Army, EEQC Appeal No. 0120100239 (April 21, 2010), Req. for reconsid. denied 0520100383 (Jul. 15, 2010).
An EEOC Administrative Judge (AJ) held consecutive hearings on the complaints and issued two separate decisions. The AJ found that Complainant failed to establish that she was subjected to discrimination in both complaints. The Agency fully implemented the AJ's decision and issued a final order adopting the AJ's findings. Complainant appealed the decision to the Commission. The Commission affirmed the finding of no discrimination as to all claims. The Commission found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, with regard to the non-selection, the selecting official stated that they used an automated resume system to evaluate the resumes. Complainant did not have two out of the five desired skills listed on her resume, and as a result her name was not forwarded to the selecting official. With regard to the cold air ventilation problems, the record showed that the Facility Manager contacted an HVAC contractor 33 times during the relevant time period to fix the problem. Ultimately, the Agency purchased and installed a deflector over the vent in Complainant's area to redirect the cold air away from Complainant.
With regard to the claim that the Agency did not allow her to perform planning, scheduling, and logistical duties, the Agency explained that in 2007 these duties were removed from all of the Administrative Support Assistants' performance standards as part of the reorganization and realignment of the Army Research Office's Directorates. The Directorate Secretaries assumed these duties for each Directorate. The Commission found that Complainant failed to demonstrate that the Agency's articulated legitimate, nondiscriminatory reasons were pretext for discrimination.
REQUEST FOR RECONSIDERSATION CONTENTIONS
In her request for reconsideration, Complainant asserts that the appellate decision involved a clearly erroneous interpretation of the material facts. Complainant thereafter however, reiterates the same issues that were raised in her appeal and addressed in the previous decision.
The Agency requests that Complainant's request for reconsideration be denied as she has failed to meet the necessary requirements for reconsideration and because she simply restates the arguments previously decided in the appellate decision.
ANALYSIS AND FINDINGS
After reviewing 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(c), and it is the decision of the Commission to deny the request. We find that Complainant has failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. We find that Complainant has offered no evidence which suggests that the decision contained a clearly erroneous interpretation of material fact. Moreover, we find that Complainant in the instant complaint simply restates arguments that were addressed in the appellate decision.1 Therefore, we find the decision in EEOC Appeal No. 0120120544 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
____3/27/15______________
Date
1 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 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17. A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or will have a substantial impact on the policies, practices, or operations of the Agency.
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0520140403
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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