0520140057
04-03-2014
Complainant v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Indian Health Service), Agency.
Complainant
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Request No. 0520140057
Appeal No. 0120132241
Hearing No. 540-2012-00027X
Agency No. HHS-IHS-1366-2008
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120132241 (September 25, 2013). 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).
The previous decision affirmed the Agency's implementation of the Administrative Judge's (AJ's) decision to dismiss Complainant's complaint. Complainant had filed an EEO complaint in which she claimed she had been discriminated against on the bases of disability and reprisal when she was not granted leave, was denied a reasonable accommodation, and was terminated during her probationary period. The AJ granted the Agency's motion to dismiss the complaint on the basis that Complainant had filed a grievance under the relevant collective bargaining agreement prior to filing a formal EEO complaint. The previous decision affirmed the AJ's dismissal, finding that Complainant had not shown that she had attempted to contact an EEO Counselor prior to filing the grievance, as she had claimed in her appeal, and had evidenced an intent to utilize the grievance process.
Complainant filed a request for reconsideration in which she argued that the previous decision was in error because she had met with an EEO Counselor several times before the events in her complaint in order to discuss filing a formal EEO complaint. She argued that these meetings were evidence of her intent to pursue the EEO process, and that she only filed the grievance when she could not get in touch with an EEO Counselor following her termination. The Agency did not file a brief or statement in opposition to Complainant's request for reconsideration.
We find that Complainant's request for reconsideration fails to show that our previous decision involved a clearly erroneous interpretation of material fact or law, or that it would have a substantial impact on the policies, practices or operations of the Agency. Complainant's arguments in support of her request for reconsideration do not show that the previous decision clearly erred as a matter of fact or law in its conclusion that she had elected to file a grievance before she filed an EEO complaint. Commission cases have consistently held that the evidence of the election between the EEO process and the grievance process is the filing of the grievance or of the formal EEO complaint, not the initiating of informal EEO counseling.
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; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here.
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. The decision in EEOC Appeal No. 0120132241 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
April 3, 2014
Date
2
0520140057
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140057