0520080047
11-16-2007
Maria V. Carmona, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Maria V. Carmona,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Request No. 0520080047
Appeal No. 0120071402
Agency No. TD062153
DENIAL
Complainant timely requested reconsideration of the decision in Maria
V. Carmona v. Department of the Treasury, EEOC Appeal No. 0120071402
(May 30, 2007). 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).
Complainant alleged discrimination on the bases of national origin
(Hispanic/Cuban), sex (female), age (D.O.B. 10/08/52), and/or reprisal
for prior protected EEO activity under Title VII of the Civil Rights
Act of 1964 when: (1) on February 16, 2005, she was not selected for a
GS-511-15 Supervisory Auditor position (Position I) that was advertised
under vacancy Announcement number OA-2005-007; and (2) on August 8,
2005, she was not selected for a GS-511-15 Supervisory Auditor position
(Position II) that was originally advertised under Vacancy Announcement
Number OA-2005-015, then re-announced under Vacancy Announcement Number
OA-2005-017.
In its decision, the agency determined that complainant established
a prima facie case of sex, national origin, and age discrimination and
reprisal with respect to Position I. The decision further found that the
agency articulated a legitimate nondiscriminatory reason for selecting
the selectee. However, the decision concluded that complainant failed to
show that the agency's articulated reason for choosing the selectee for
the position at issue was pretext for discrimination. With respect to
Position II, the decision found that complainant established a prima facie
case of sex and national origin discrimination, as well as in reprisal.
However, it determined that she failed to establish a prima facie case of
age discrimination. The decision then found that the agency articulated
a legitimate nondiscriminatory reason for choosing the selectee; the
agency then found that complainant failed to show that the agency's
reason was pretextual.
Pursuant to complainant's appeal, the Commission found that complainant
has failed to prove by a preponderance of the evidence that the agency
acted on the bases of sex, national origin, and/or age discrimination or
in reprisal when it did not select her for GS-511-15 Supervisory Auditor
positions on February 16 and August 8, 2005.
Complainant then filed a request for reconsideration, arguing that despite
her proven leadership skills, highly-rated performance appraisals,
qualifications and experience, she has not been permanently promoted
beyond Grade 14. Complainant alleged that a fair, unbiased, reasonable,
objective and impartial reviewer would have found that the agency
committed a practice of discrimination, retaliation, disparate treatment
and harassment against her due to her protected groups. Complainant
further alleged that she requested reconsideration of the Commission's
decision as the decision involved clearly erroneous interpretations of
material facts and allows officials at the agency and at the Commission
to continue their clear policy of a long-term pattern of discrimination.
The agency responded to complainant's request, alleging that the request
did not meet the criteria of 29 C.F.R. � 1614.405.
Having reviewed our earlier decision, we find it appropriate to deny
the request as it fails to meet the criteria of 29 C.F.R. � 1614.405(b).
Complainant has not indicated how the Commission clearly and erroneously
applied the facts and law in this case. In her request, complainant
has essentially alleged that discrimination by the agency was the
sole reason for her failure to be chosen for the positions at issue.
However, we have already addressed that issue in our prior decision on
the AJ's conclusions. Complainant's continued difference of opinion and
interpretation of the facts does not establish that the prior decision
clearly erred in its interpretation of the facts and law in this matter.
We find no error in our evaluation of the facts and law. Moreover, we
note that complainant has raised on reconsideration the same arguments
she raised on appeal. Complainant therefore intends to have our office
review the matter on appeal a second time, yet our Management Directive
prohibits such action. A "request for reconsideration is not a second
appeal to the Commission." Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614, at 9-17 (rev. Nov. 9, 1999). We
only grant reconsideration in the two very narrow circumstances listed
above. As complainant has not shown how our interpretation of the material
facts or law was clearly erroneous, the decision in EEOC Appeal 0120071402
remains the Commission's final 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 (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
__11-16-07_______________
Date
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0520080047
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0520080047