0520120643
03-15-2013
Janet M. Clawson-Cano, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.
Janet M. Clawson-Cano,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Request No. 0520120643
Appeal No. 0120121727
Agency No. FS201000042
DENIAL
Complainant timely requested reconsideration of the decision in Janet M. Clawson-Cano v. Department of Agriculture, EEOC Appeal No. 0120121727 (August 17, 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 case, Complainant contends that the EEOC Administrative Judge (AJ) improperly issued a decision without a hearing finding that Complainant failed to establish that the Agency subjected her to discrimination on the bases of race (Caucasian), national origin (Hispanic), religion (Buddhist/Krishna/ Peace Dancer), disability (PTSD), and age (52) when: (1) on May 28, 2009, Complainant received a fully successful performance evaluation for Fiscal Year 2009; (2) on May 28, 2009, Complainant received a letter terminating her employment; (3) on an unspecified date, Complainant did not receive compensation for ten hours of compensatory time; and (4) on October 14, 2009, an Agency supervisor provided a negative statement regarding Complainant to an Agency contractor resulting in Complainant's termination from the contractor's employment, because there were credibility issues to address.
The appellate decision affirmed the Agency's final order finding no discrimination.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant requests that the Commission reconsider its appellate decision because the decision was based on "erroneous interpretation of material facts or law". In her request, Complainant reiterates many of the arguments from her previous appeal. In response to Complainant's request, the Agency argues that Complainant fails to meet the requirements for a request to reconsider and asks the Commission to uphold its previous decision.
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. The Commission has long held that it is improper to merely reargue the underlying facts of a case in a request for reconsideration. 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. 0120121727 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
__3/15/13________________
Date
2
0520120643
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120643