0520120338
07-10-2012
Jennifer M. Tootle, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Jennifer M. Tootle,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Request No. 0520120338
Appeal No. 0120114146
Agency No. FS201100515
DENIAL
Complainant timely requested reconsideration of the decision in Jennifer M. Tootle v. Department of Agriculture, EEOC Appeal No. 0120114146 (February 9, 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 facts and procedural background are set forth in the previous decision and are incorporated herein by reference. We note the following salient facts: On July 6, 2011, Complainant's attorney was provided with notice of Complainant's right to file an EEO complaint. Although the notice indicated that Complainant had to file her complaint within fifteen (15) calendar days, her complaint was not filed until July 27, 2011. The Agency dismissed the complaint on the grounds that it was filed in an untimely manner. Complainant filed an appeal with the Commission. Complainant maintained that her attorney only represented her during the attempt to mediate her dispute with the Agency prior to the complaint being filed, and on an unrelated EEO compliant, but not on the instant complaint. The previous decision, noting the lack of evidence indicating that the Agency was informed the attorney did not represent Complainant with respect to the formal complaint, affirmed the Agency's dismissal.
In her request for reconsideration, Complainant discusses the efforts to mediate her dispute with the Agency. In pertinent part, she indicated that in June 2011, the Agency removed "approval authority" from the EEO ADR Program Manager. Complainant maintains that the Agency did not act with courtesy and good faith to resolve her complaint because it did not timely reconvene the mediation. She also indicated that the Agency was notified of her attorney's status.
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. 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. Here, we find no evidence that Complainant has met the criteria for reconsideration. There is no dispute that Complainant's attorney received the notice on July 6. There is also no persuasive evidence that, prior to July 6, 2011, Complainant notified the Agency that her attorney was no longer representing her or that the attorney's representation was limited to the mediation efforts. On the contrary, Complainant stated:
During the month of June, I was informed by [named Agency official] that the Agency had pulled "approval authority" and she did not know much about it. Complainant never received a letter, email or contacted any further about what was happening with the case or what [the] next steps were due to this revelation.
If as indicated by Complainant, her attorney was representing her during the mediation process and in June that process was placed on hold, we find it reasonable that, absent an expressed statement from Complainant that the attorney was no longer representing her in this matter, the Agency would have served the notice on Complainant's attorney of record on July 6, 2011. Additionally, as noted by the previous decision, Complainant is at all times responsible for proceeding with the complaint.
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. 0120114146 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
__7/10/12________________
Date
2
0520120338
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120338