05a30200
03-19-2003
Janie T. Zapata-Rew, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Janie T. Zapata-Rew v. Department of the Air Force
05A30200
03-19-03
.
Janie T. Zapata-Rew,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Request No. 05A30200
Appeal No. 01A01179
Agency Nos. KHOF 96-433; KHOF 95-156
Hearing Nos. 360-97-8314X; 360-98-8465X
DECISION ON REQUEST TO RECONSIDER
On September 19, 2001, Janie T. Zapata-Rew (complainant) timely initiated
a request to the Equal Employment Opportunity Commission to reconsider
the decision in Janie T. Zapata-Rew v. Dr. James G. Roche, Secretary,
Department of the Air Force, EEOC Appeal No. 01A01179 (August 19, 2002).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision where the party demonstrates that:
(1) the previous decision involved a clearly erroneous interpretation of
material fact or law; or (2) the decision will have a substantial impact
on the policies, practices, or operation of the agency. 29 C.F.R. �
1614.405(b).
In this matter, the Administrative Judge (AJ) found that the agency did
not discriminate against complainant on the bases of national origin
(Hispanic), disability (stress and weight), and reprisal when she was
reassigned in October 1994 and in May 1996, when her position changed.
The AJ found that the agency offered legitimate, nondiscriminatory
reasons for her reassignment, i.e., she was moved to another position to
eliminate a negative relationship with a supervisor, and for the change
in her position, i.e., the unit was changed to full deployment status,
requiring her position to be occupied by a military reserve member with
technical skills.<1> Finally, the AJ concluded that complainant did not
demonstrate that the agency's reasons for its actions were not true and
based on illegal animus or discrimination. The previous decision agreed
with the AJ.
In order to merit the reconsideration of a prior decision, the requesting
party must submit written argument that tends to establish that at least
one of the criteria of 29 C.F.R. � 1614.405(b) is met. The Commission's
scope of review on a request for reconsideration is narrow and is not
merely a form of a second appeal. Lopez v. Department of the Air Force,
EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS,
EEOC Request No. 05900850 (September 7, 1990). The Commission finds that
the complainant's request does not meet the regulatory criteria of 29
C.F.R. � 1614.405(b), in that, her request does not identify a clearly
erroneous interpretation of material fact or law, nor does it show that
the underlying decision will have a substantial impact on the policies,
practices or operation of the agency.<2>
Even assuming complainant established a prima facie case on all bases,
she has not demonstrated that the agency's reasons for its actions were
not true and that the agency's actions were based on illegal animus
or discrimination. After a review of the 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. 01A01179 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on a request for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON 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
_____03-19-03_____________
Date
1Complainant was placed in another position.
2Complainant also contended that the AJ found discrimination, but she
misstated the AJ's indication and is incorrect, since the AJ found that
she did not demonstrate pretext. To the extent that complainant may
be asserting that a prima facie case is a finding of discrimination,
it is only her initial burden, and, after the agency's articulation
of its reason, she must show that the reason was not true and based on
discriminatory considerations. Also, note that discussions concerning
settlement are confidential and not made part of the record.