0520130039
03-26-2013
Karin Weng, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Karin Weng,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Request No. 0520130039
Appeal No. 0120121936
Agency No. CRC1111103
DENIAL
Complainant timely requested reconsideration of the decision in Karin Weng v. Department of Labor, EEOC Appeal No. 0120121936 (September 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).
In the appellate decision, Complainant alleged that the Agency discriminated against her on the bases of race (Asian), national origin (Taiwanese), sex (female), and reprisal for prior protected EEO activity when: (1) on April 15, 2011, her supervisor rated her as "fails" in four performance elements and "not applicable" in one performance element on her FY 2011 mid-year review, yielding an overall rating of "unsatisfactory"; and (2) in an attached printed 145-page statement, her supervisor subjected her to ongoing harassment and "maliciously throws up every possible obstacle . . . in the way of [Complainant's] success;" and (3) the supervisor imposed harsher standards on her than he imposed on a similarly situated white male team member.
The Agency issued a FAD which found that Complainant could challenge the mid-year rating on the basis of reprisal, but not race, sex, or national origin. In not accepting the entire complaint, the Agency construed Complainant's claims as pertaining to a preliminary step to a personnel action. The Agency did not address her claim that her supervisor favored the white male employee or was subjecting her to heightened security and different standards. Although The FAD found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that the appraisal was based solely on the work Complainant performed during the performance period in relation to her performance standards, and her supervisor's perception that Complainant's deficiencies outweighed her accomplishments. The FAD found that Complainant failed to show that the articulated reasons were pretext for discrimination.
The appellate decision, for purposes of analysis, assumed that Complainant did establish a prima facie case of race, sex, and national origin discrimination in addition to reprisal. The decision found that while Complainant maintained that management was unreasonable in its demands; violated the collective bargaining agreement; and was not sufficiently responsive to Complainant's request for clarification of any areas needing improvement, she did not dispute some of the unsatisfactory performance charges against her including failing to submit corrections within the timeframe ordered by her supervisor. The Commission found that Complainant failed to show that the Agency's stated reasons were pretext for discriminatory animus.
CONTENTIONS ON REQUEST FOR RECONSIDERATION
In her request for reconsideration, Complainant argues that her supervisor did not define the relative weights of the subcomponents in any standard, the Agency's investigation of her complaint was inadequate as her rebuttals regarding the criticisms of her work were ignored, her supervisor improperly relied on subjective measures of performance such as attitude, and she was taken off complex cases without cause. She also maintained that OFO failed to consider corroborating evidence concerning the Agency's treatment of Complainant's two female coworkers, and evidence impugning her supervisor's veracity. Complainant also contends that the appellate decision will have a substantial impact on the policies, practices or operations of the Agency.
ANALYSIS AND FINDINGS
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. We find that Complainant has failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Specifically, we note that the arguments made in the instant complaint are the same arguments made and addressed in our prior decision.1 The Commission has held that merely rearguing the facts of a case is improper in a request for reconsideration. Bartlomain v. United States Postal Service, EEOC Request No. 05910436 (October 10, 1991). Accordingly, the decision in EEOC Appeal No. 0120121936 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
_____3/26/13_____________
Date
1 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.
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0520130039
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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