05A20588
06-26-2002
Elida Palomo, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Elida Palomo v. Department of the Air Force
05A20588
June 26, 2002
.
Elida Palomo,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Request No. 05A20588
Appeal No. 01995090
Agency Nos. KHOF96703; KHOF98281
DENIAL OF REQUEST FOR RECONSIDERATION
Elida Palomo (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider the
decision in Elida Palomo v. Department of the Air Force, EEOC Appeal
No. 01995090 (February 28, 2002). 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 the underlying complaint, complainant alleged she was she was
discriminated against on the bases of race/national origin (Hispanic),
sex (female), disability (diabetes and job-related stress), age
(D.O.B. 6/12/45), and reprisal for prior EEO activity when:
on August 22, 1996, she received a �fully successful� rating for the
period of July 1, 1995, to June 30, 1996; and
on May 28, 1998, she received a �fully successful� rating for the rating
period April 1, 1997, to March 31, 1998.
In affirming the agency's decision, we found that complainant did not
offer any evidence that she was treated differently than others not of
her protected classes. We further found that complainant failed to
present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination. In reaching
that conclusion, we noted that agency officials (S1 and S2) who rated
complainant stated that she failed to meet deadlines and schedules
on occasion. Further, S1 and S2 both stated that complainant met her
performance expectations for the ratings periods in question, but did not
exceed them, or in any way perform outstanding work. Complainant did not
dispute that she failed to meet deadlines or schedules on appeal or in
her request for reconsideration, rather she argued on appeal, and again
argues herein, that she had a large workload and very little support.
That argument does not belie discriminatory animus on the part of
complainant's supervisors.
Complainant argues that in our underlying decision, we made a clearly
erroneous interpretation of material fact when we did not take into
consideration that her workload was higher than any of her co-workers.
While we might concede that this is unfair and indicative of poor
management, without evidence that assigning her more than her share of
the workload or rating her �fully successful� were actions motivated by
a discriminatory animus towards any one of complainant's protected bases,
complainant fails to prove discrimination occurred.
Therefore, after a review of complainant's request for reconsideration,
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. The decision
in EEOC Appeal No. 01995090 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
June 26, 2002
__________________
Date