0520120527
01-09-2013
Mary B. Cooper, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Mary B. Cooper,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Request No. 0520120527
Appeal No. 0120121068
Agency No. IRS090314F
DENIAL
Complainant timely requested reconsideration of the decision in Mary B. Cooper v. Department of the Treasury, EEOC Appeal No. 0120121068 (June 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).
BACKGROUND
In the underlying case, Complainant alleged that the Agency subjected her to harassment in retaliation for her prior protected EEO activity when: (1) on or about October 1, 2008, her manager threatened to write her up; (2) on an unspecified date, her manager did not allow her to serve as an On-the-Job Instructor (OJI) for the new Specialist; (3) in August 2008, her manager told Complainant that she would be the floater; (4) on an unspecified date in 2006, her manager yelled at her loudly and threatened to write her up for insubordination; (5) on an unspecified date, her manager snatched a letter from her hand and refused to give Complainant a copy; (6) on or about January 22, 2009, her manager did not give Complainant a three percent Performance Award; (7) on or about January 22, 2009, her manager verbally threatened Complainant and told her, "If you continue to use an Exam Coordinator and not go directly to the Revenue Agent working the case, you will never get a three percent award;" and (8) on August 27, 2009, the Agency did not select Complainant for the position of Senior Disclosure Specialist under Vacancy Announcement number 50-18-CL091201. The AJ granted summary judgment in favor of the Agency, and the Agency issued a final order adopting the AJ's decision. The appellate decision affirmed the Agency's final order. The appellate decision found that while it was undisputed that Complainant engaged in prior protected activity, and assuming that management was aware of the prior EEO activity, no reasonable fact finder could conclude that the alleged incidents were motivated by retaliatory animus. With respect to the non-selection, the appellate decision found that the record established that the Agency selected an individual with a higher score than Complainant, and that there was no evidence of discriminatory animus. With respect to Complainant's harassment claim the appellate decision found that Complainant was unable to establish the second element (that the action was due to reprisal) because her prior EEO activity occurred more than three years ago and the selecting official who determined that Complainant was not the best candidate was not aware of Complainant's prior protected activity. With respect to the remaining examples of harassment, the appellate decision found that they did not rise to the level of harassment, or constitute an adverse action.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant requests that the Commission reconsider and overturn its appellate decision. Complainant argues that summary judgment is inappropriate in the instant matter. She contends that the decision contains errors and misstated facts. In addition to these arguments, Complainant reiterates the arguments from her previous appeal.
ANALYSIS AND FINDINGS
Complainant is reminded 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), Ch. 9 � VII.A. (Nov. 9, 1999). Because Complainant has not put forth any arguments which the Commission finds to be material to the outcome of the underlying decision, or that were not previously considered in rendering the underlying decision, the Commission finds that Complainant has not demonstrated that the underlying decision involved a clearly erroneous interpretation of material fact or law. Neither has Complainant argued or demonstrated that the underlying decision would have a substantial impact on the policies, practices, or operations of the Agency.
CONCLUSION
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. 0120121068 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
1/9/13
Date
2
0520120527
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120527