0520100515
09-10-2010
Cynthia Blatt, Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.
Cynthia Blatt,
Complainant,
v.
Shaun Donovan,
Secretary,
Department of Housing and Urban Development,
Agency.
Request No. 0520100515
Appeal No. 0120080280
Hearing No. 480200600275X
Agency No. 05094
DENIAL
Complainant timely requested reconsideration of the decision in Cynthia Blatt v. Department of Housing and Urban Development, EEOC Appeal No. 0120080280 (June 11, 2010). 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).
BACKGROUND
The record reveals that Complainant worked as a GS-12 Community Planning and Development Representative in the Office of Community Planning and Development, Los Angeles, California. Complainant asserts that her first and second line supervisors subjected her to a hostile work environment based on her race and sex when:
1. On May 12, 2005, credit was given to higher-graded male co-workers for work that she had performed;
2. On May 18, 2005, her request for a desk audit to support a non-merit promotion to the GS-13/14 level was not given a response;
3. As late as May 20, 2005, harassing e-mails were forwarded to her concerning her work assignments and reports; and
4. As of June 6, 2005, the agreement for her participation with the Leadership Training Program had not been honored.
She also contends that she was subjected to harassment on the basis of reprisal resulting in a hostile work environment when:
5. On August 2, 2005, she was harassed regarding Religious Compensatory Time; and
6. On August 2, 2005, she was refused approval to represent the Agency at a Memorial Service.
Finally, Complainant argues that she was subjected to discrimination based on race, sex, and reprisal when:
7. On or about June 13, 2006, she was not selected for a GS-14 Program Manager Position.
Following an investigation by the Agency, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to this case issued a decision without a hearing with respect to claims (1)-(6) and held a hearing on claim (7). Regarding claims (1)-(6), the AJ granted the Agency's motion for summary judgment. As for claim (7), the AJ found that Complainant failed to show that she was not selected due to unlawful discrimination. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that she was subjected to discrimination as alleged.
In the previous decision, regarding claims (1)-(6), the Commission found that the AJ properly issued a decision without a hearing. Specifically, the Commission found that assuming arguendo that Complainant established a prima facie case of discrimination on all bases, the Agency articulated legitimate nondiscriminatory reasons for its actions. Further, the Commission found that Complainant failed to show that these articulated reasons were pretext for discrimination. The Commission also found the alleged incidents, taken as a whole, were not sufficiently severe and pervasive enough to constitute a hostile work environment. As for claim (7), the Commission found that the selectee was chosen because the Agency found that he was more qualified than Complaint. The Commission also noted that Complainant failed to show that her qualifications were "clearly superior" to those of the selectee. The Commission did not consider Complainant's appeal brief with supporting materials finding that it was it untimely even after she was granted an extension.1
In her request for reconsideration, Complainant, through her attorney, maintained that the prior decision erred when it did not consider her 148 page appeal brief with supporting materials. In this regard, Complainant noted that she initially requested a 60 day extension, but was only given a 21 day extension by the Office of Operations. Complainant further contended that she continued to request additional time, but was denied. Complainant also notes that she has demonstrated good cause for her late submission. Complainant argued that the AJ erred in refusing to adopt her proposed factual findings and legal conclusions regarding her nonselection claim. Further, Complainant contended that her qualifications were "clearly superior" to those of the selectee. Next, Complainant maintained that the AJ erred in issuing a decision without a hearing because genuine issues of material fact remained.
ANALYSIS AND FINDINGS
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. 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 (rev. Nov. 9, 1999), at 9-17. Regarding Complainant's assertion that the Commission erred by not considering her appeal brief, we find that even assuming arguendo that her brief was timely, Complainant failed to establish that the prior decision would have been different. In this regard, we find that the prior decision correctly determined that Complainant failed to show that she was subjected to severe and pervasive conduct and failed to show that her nonselection was based on discriminatory animus. The decision in EEOC Appeal No. 0120080280 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
_____9/10/10_____________
Date
1 The Office of Operations granted Complainant's request for an extension to submit her supporting materials in a November 13, 2007 letter. The letter gave Complainant until December 12, 2007, to submit her materials. However, Complainant did not submit her brief until January 16, 2008.
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0520100515
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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