Dawn Olson, Complainant,v.Paul H. O'Neill, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionDec 20, 2001
05A20078 (E.E.O.C. Dec. 20, 2001)

05A20078

12-20-2001

Dawn Olson, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.


Dawn Olson v. Department of Treasury

05A20078

12-20-01

.

Dawn Olson,

Complainant,

v.

Paul H. O'Neill,

Secretary,

Department of the Treasury,

Agency.

Request No. 05A20078

Appeal No. 01983200

Agency No. 97-4112

DECISION ON REQUEST FOR RECONSIDERATION

The agency timely initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Dawn Olson

v. Department of Treasury, EEOC Appeal No. 01983200 (July 19, 2001).

EEOC Regulations provide that the Commission may, in its discretion,

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).

In this case, complainant filed a formal EEO complaint on January 31,

1997, alleging that she had been discriminated against on the bases of

disability (cerebral palsy) and reprisal (prior EEO activity) when the

agency failed to provide her with a reasonable accommodation when she was

forced to take a downgrade and when the door to the agency's facility was

not sufficiently accessible. In its final decision, the agency determined

that complainant failed to establish her claim of discrimination.

The previous decision affirmed the agency's finding of no discrimination.

In its request for reconsideration, the agency states that the Commission

should rescind our previous decision based on complainant's filing

of a civil action in the U.S. District Court of Utah. We find that

the agency has not shown that the previous decision involved clearly

erroneous interpretation of material fact or law. In particular, we

note that we were not made aware of complainant's civil action prior to

the issuance of the previous decision. Therefore, it is the decision

of the Commission to deny the request in that the agency failed to meet

the criteria of 29 C.F.R. � 1614.405(b).

However, in light of the documents presented by the agency in its request,

it is the Commission's decision to reconsider the case on our own motion.

The agency's request indicates that complainant filed a civil action on

June 17, 1999, prior to the previous decision being issued. A review

of the civil action indicates that it encompasses the allegations

raised in complainant's complaint. Pursuant to 29 C.F.R. � 1614.409,

all administrative processing of complainant's appeal is terminated.

Complainant, by filing the civil action, elected to proceed in the Federal

Court system. Therefore, the Commission lacked jurisdiction to issue

the previous decision. Accordingly, the previous decision is VACATED.<1>

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

___12-20-01_______________

Date

1 The agency also presented evidence that in January 2001, complainant

and the agency entered into a settlement agreement that resolved her

civil action.