05a50874
09-13-2005
Judy Watts, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Judy Watts v. Department of Veterans Affairs
05A50874
09-13-05
.
Judy Watts,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A50874
Appeal No. 01A51776
Agency No. 200G-0301-2004103560
DECISION ON REQUEST TO RECONSIDER
On May 17, Judy Watts (complainant) timely requested reconsideration of
the decision in Judy Watts v. R. James Nicholson, Secretary, Department
of Veterans Affairs, EEOC Appeal No. 01A51776 (April 29, 2005).
EEOC regulations provide that the Commission may, in its discretion,
grant a request to reconsider any previous Commission decision where
the party demonstrates that: (1) the appellate 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).
The previous decision dismissed complainant's complaint as untimely
brought to the attention of an EEO counselor and for failure to state
a claim. In her complaint, complainant claimed, inter alia, that she
was subjected to a hostile work environment when she was placed on a
Performance Improvement Plan (PIP) on June 10, 2004; however, this issue
was dismissed when the agency showed that it cancelled the PIP on July
12, 2004. Although complainant claimed on appeal that the PIP had been
reinstated, she did not submit documentary evidence in support. In her
request, complainant asked for "further review of this case of sexual
harassment" and provided "the documents that you said were missing"
showing reinstatement of the PIP in October 2004.<1> This is not
new evidence that was unavailable prior to complainant's appeal, and,
at the time she filed her appeal, it was her obligation to submit such
evidence with her appeal.<2> Further, complainant is not entitled to
"further review" of her claims on a request for reconsideration.
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, the 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.
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. 01A51776 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on the decision of the Commission on this request.
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
___09-13-05_______________
Date
1In addition, complainant attached documents showing her removal
effective April 2, 2005. This issue is not before us in this complaint.
Complainant was advised of her rights of appeal in the agency's letter
dated March 28, 2005.
2We note that complainant was represented at all times by legal counsel.