0520120578
02-06-2013
Gale Rookard, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Gale Rookard,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Request No. 0520120578
Appeal No. 0120110526
Hearing No. 420-2010-00114X
Agency No. ATL-09-0456
DENIAL
Complainant timely requested reconsideration of the decision in Gale Rookard v. Social Security Administration, EEOC Appeal No. 0120110526 (July 12, 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).
The previous decision affirmed the Agency's final order adopting the decision of the EEOC Administrative Judge (AJ), who issued a decision without a hearing. The AJ found that Complainant had not shown that the Agency discriminated against her or subjected her to harassment based on reprisal when her supervisor gave her a March 18, 2009, Form 5002/Report of Contact concerning a discourteous telephone incident. The supervisor stated that she issued the Report because a customer complained that Complainant was rude during a telephone call. The AJ concluded that Complainant had not shown that the Agency's articulated reason was a pretext for discrimination or that the Agency's action was so severe or pervasive that it created a hostile work environment.
In our previous decision, we found that the AJ appropriately issued a decision without a hearing and that the evidence did not establish that unlawful discrimination occurred. We concluded that Complainant failed to establish that the Agency's conduct was sufficiently severe to constitute harassment, failed to show that she was treated less favorably than similarly situated employees, and failed to show that the Agency's actions were motivated by discrimination.
In her request for reconsideration, Complainant reiterates the arguments that she raised on appeal. She asserts that she was not rude to the customer and argues that the AJ improperly denied her a fair hearing. In addition, Complainant claims that "[t]he appellate decision violates the privacy act and policies if an investigation was done and Complainant's name was used at any time during the investigation. No documentation or evidence was ever provided to dispute Complainant's rebuttal." The Agency did not file a reply to Complainant's 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 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here.
As we noted on appeal, the record was fully developed and there was no genuine issue of material fact. Accordingly, the AJ properly issued a decision without a hearing. Further, to the extent that Complainant is alleging a violation of the Privacy Act, 5 U.S.C. � 552a, we note that the Privacy Act provides an exclusive statutory framework governing the disclosure of identifiable information contained in federal systems of records, and jurisdiction rests exclusively in the United States District Courts for matters brought under the Privacy Act. See Bucci v. Dep't of Educ., EEOC Request Nos. 05890289, 05890291 (Apr. 21, 1989). Complainant, who produced no evidence that the Agency's actions were motivated by her prior EEO activity, has failed to demonstrate that the previous decision clearly erred in affirming the Agency's final order adopting the AJ's decision.
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. 0120110526 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
February 6, 2013
Date
2
0520120578
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120578