0520120351
01-25-2013
Elisha L. Demerson, Complainant, v. Stephen Chu, Secretary, Department of Energy, Agency.
Elisha L. Demerson,
Complainant,
v.
Stephen Chu,
Secretary,
Department of Energy,
Agency.
Request No. 0520120351
Appeal No. 0120110770
Agency No. 090119AL
DENIAL
Complainant timely requested reconsideration of the decision in Elisha L. Demerson v. Department of Energy, EEOC Appeal No. 0120110770 (February 23, 2012). 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
In the underlying decision Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (Black), age (58), and reprisal for prior protected EEO activity under Title VII when: 1) On September 30, 2009, she was not selected for the position of Assistant Manager for Oversight and Assessment, EN 801/130104/04, Vacancy Number 09-0995-EN-NAT, for which she had applied; and 2) On November 17, 2009, she received a Fully Meets Expectations (FME) overall rating on her FY 2009 Performance Evaluation, although she believes that she should have been rated Significantly Exceeds Expectations (SEE). At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge. Complainant requested a final decision pursuant to 29 C.F.R. � 1614.110(b). In its final decision, the Agency found no discrimination. Specifically, the Agency determined that, even if Complainant could establish a prima facie case, management had recited legitimate, nondiscriminatory reasons for its actions. The appellate decision affirmed the Agency's final decision finding that the preponderance of the evidence of record did not establish that discrimination had occurred.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant requests that the Commission reconsider and overturn its appellate decision. Complainant contends that the decision contains errors and misstated facts. Complainant argued that her appeal challenged more than the credibility of witnesses. She argues that she provided evidence which clearly established that the Agency deliberately failed to follow its own policies. Additionally, Complainant argued that the decision will have a substantial impact on the policies, practices and operations of the Agency. It is Complainant's contention that the appellate decision will permit the Agency to deliberately fail to follow its own policies which were designed to prevent retaliation and discrimination. In addition to these new arguments, Complainant reiterated many of the arguments from his initial appeal.
ANALYSIS AND FINDINGS
Complainant is reminded 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), Ch. 9 � VII.A. (Nov. 9, 1999). Because Complainant has not put forth any arguments which the Commission finds to be material to the outcome of the underlying decision, or that were not previously considered in rendering the underlying decision, the Commission finds that Complainant has not demonstrated that the underlying decision involved a clearly erroneous interpretation of material fact or law. Neither has Complainant argued or demonstrated that the underlying decision would have a substantial impact on the policies, practices, or operations of the Agency.
CONCLUSION
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(b), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120110770 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
___1/25/13_______________
Date
2
0520120351
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120351