0520140062
04-02-2014
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520140062
Appeal No. 0120110761
Hearing No. 430-2009-00204X
Agency No. 086238101570
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120110761 (September 26, 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).
In the appellate decision, the Commission affirmed an EEOC Administrative Judge's finding after a hearing that Complainant failed to establish that she was subjected to sexual harassment and retaliation when she was removed from her position. Complainant requested that the Commission reconsider its decision.
Complainant argues that the appellate decision erred in finding that she had an affair with a co-worker and disputes the Commission findings that she did not act in an appropriate manner. She also argues that the record was incomplete and offers, in her request, signed statements from individuals. The Agency argues that it did not receive proper notice of Complainant's request for reconsideration and that the appellate decision should be upheld.
Preliminarily, we note that new evidence generally will not be accepted in a request for reconsideration. See Houser v. Dep't of Homeland Security, EEOC Request No. 0520110548 (Oct. 7, 2011) citing Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), � VI(A)(3). We may accept new evidence if the parties affirmatively demonstrate it was not previously available despite the exercise of due diligence. Id.; Est. of Petersen v. Dep't of Transp., EEOC Appeal No. 07A50016 (September 21, 2005). Here, Complainant failed to show that the statements she wishes to submit now were not available previously despite due diligence. Accordingly, we decline to consider the evidence contained in the statements she now submits.
Further, we find that Complainant largely reargues the facts of the appellate case. 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), 9-17 (November 9, 1999). Further, even if we were to find that the appellate decision misconstrued the evidence regarding Complainant's alleged affair with a coworker, we find that it was immaterial to the overall finding that Complainant failed to demonstrate that she was harassed as alleged. As such, we find that Complainant failed to establish that the appellate decision involved a clearly erroneous interpretation of material fact or law; or the appellate decision will have a substantial impact on the policies, practices, or operations of the agency.
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. 0120110761 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
__4/2/14________________
Date
2
0520140062
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140062