05a20563
06-24-2002
Kathryn Kershner, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Kathryn Kershner v. Department of the Interior
05A20563
June 24, 2002
.
Kathryn Kershner,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Request No. 05A20563
Appeal No. 01995575
Agency No. FNP98061
DENIAL OF REQUEST FOR RECONSIDERATION
Kathryn Kershner (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider the
decision in Kathryn Kershner v. Department of the Interior, EEOC Appeal
No. 01995575 (February 15, 2002). EEOC Regulations provide that the
Commission may, in its discretion, 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).
After a review of 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). Complainant
alleged that she was discriminated against on the bases of race (white),
national origin (white/Slovak), sex (female) and disability (depression,
disc/neck) and subjected to retaliation for prior protected activity
when the agency failed to provide her with a reasonable accommodation
and took a number of adverse actions against her. The previous decision
determined that complainant failed to establish she is an individual with
a disability within the meaning of the Rehabilitation Act. The decision
went on to find that complainant failed to establish by a preponderance
of the evidence that the agency's actions were motivated by her membership
in a protected group.
In her request for reconsideration, complainant limits her argument to
her claim that she was discriminated against due to her disability.
She argues that the previous decision involved a clearly erroneous
interpretation of law in finding that complainant is not substantially
limited in the major life activity of sleeping. She also contends that
because the agency failed to argue that complainant was not substantially
limited, the Commission erred in relying on such a finding in its
decision.
Although complainant correctly notes that in discussing the major
life activity of sleeping the previous decision used language from
EEOC Enforcement Guidance on the Americans with Disabilities Act and
Psychiatric Disabilities, but did not contain a direct quote from this
guidance, this fact has no relevance. Complainant failed to establish
that she is substantially limited in the major life activity of sleeping.
Instead, as indicated in the previous decision, the evidence complainant
provided merely established that she had trouble getting to sleep and
occasionally slept fitfully. This, without more details as to the
degree to which her sleep was affected or the frequency of her sleep
problems, is insufficient to establish that her ability to sleep was
substantially limited. See EEOC Enforcement Guidance on the Americans
with Disabilities Act and Psychiatric Disabilities, No. 915.002 (March
25, 1997), at question 11.
Complainant's contention that the previous decision erred in considering
whether she was substantially limited in a major life activity because
the agency did not put forth this argument, is also without merit.
The Commission employs a de novo standard of review in issuing appeals
from agency final decisions. The de novo standard requires that the
Commission examine the record without regard to the factual and legal
determinations of the previous decision maker. See Equal Employment
Opportunity Management Directive 110, as revised November 9, 1999, at
9-15. Moreover, a review of the FAD reveals that the agency did, in fact,
argue that complainant failed to establish that she was substantially
limited in a major life activity. See Final Agency Decision, May 28,
1999, at 8.
Accordingly, after a thorough review of the entire record, we find that
complainant failed to establish that the appellate decision involved a
clearly erroneous interpretation of material fact or law, or will have a
substantial impact on the policies, practices or operations of the agency.
The decision in EEOC Appeal No. 01995575 remains the Commission's final
decision. There is no further right of administrative appeal on the
decision of the Commission on this 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
June 24, 2002
Date