05990568
11-08-1999
Mary F. Walden, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs Agency.
Mary F. Walden, )
Appellant, ) Request No. 05990568
) Appeal No. 01982929
)
v. )
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
On April 9, 1999, Mary F. Walden (appellant) filed a request with this
Commission to reconsider the decision in Mary F. Walden v. Department
of Veterans Affairs, EEOC Appeal No. 01982929 (March 10, 1999).
EEOC Regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 29 C.F.R. �1614.407(a). The
party requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy,
29 C.F.R. �1614.407(c)(2); and the previous decision is of such
exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, it is the
decision of the Commission to deny appellant's request.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed
the agency's dismissal of one allegation in appellant's complaint for
failure to seek EEO counseling.
BACKGROUND
It is undisputed that appellant initiated EEO Counselor contact on
September 16, 1997, and subsequently filed a formal complaint on January
30, 1998. In her complaint, she alleged discrimination on the bases
of race (Caucasian), color (white), sex (female), age (DOB:4/17/26)
and reprisal, when:
1) she was not promoted on September 16, 1997;
2) she was harassed; and
3) she was subjected to a hostile working environment.
On January 30, 1998, the agency issued its final decision (FAD) dismissing
allegation 1 because the Counselor's Report did not reflect that it
was discussed, and because it was not �like or related� to the other
allegations in appellant's complaint.
On appeal, appellant submitted a copy of the Report of Final Interview,
which merely set out the standard rules for pursuing a formal complaint,
but otherwise offered no statement or evidence in support of her appeal.
The prior decision affirmed the FAD's dismissal of allegation 1 pursuant
to 29 C.F.R. 1614.107(b). In particular, the prior decision concurred
that the record failed to show that appellant had raised allegation 1
with the Counselor, and also that allegation 1 was not �like or related�
to the other two allegations in the complaint.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of
the criteria of 29 C.F.R. �1614.407 is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September 28,
1989). Furthermore, a request to reconsider is not "a form of second
appeal." Regensberg v. United States Postal Service, EEOC Request
No. 05900850 (September 7, 1990); Spence v. Department of the Army,
EEOC Request No. 05880475 (May 31, 1988).
In support of her request to reconsider, appellant submits an affidavit
in which she reiterates her contention that she discussed allegation
1 with the EEO Counselor on September 16, 1997. She also submits an
affidavit from the EEO Counselor, who denies that this allegation
was discussed with her at any time during the EEO counseling process.
Through her representative, appellant also argues, in effect, that the EEO
Counselor was biased throughout the process because she was a management
official at the facility where the alleged discrimination took place.
Appellant also argues that the EEO Counselor's present affidavit must
be discredited, because she remains a management official at the same
office where appellant also still works, and where other witnesses also
remain employed.
In considering these statements, we note that the EEO Counselor's
credibility could have been placed at issue previously, and, as such, this
contention does not now constitute �new evidence� that was unavailable
at the time the previous decision was issued. Moreover, in specifically
addressing the credibility of the EEO Counselor's present affidavit,
we find that appellant has not submitted any evidence, new or otherwise,
to support her argument. Instead, she notes only that the agency recently
changed its EEO procedures to permit aggrieved employees to contact
EEO Counselors located at other agency offices, presumably to avoid the
potential for a conflict of interest. Here, however, neither evidence nor
explanation is offered to specifically demonstrate that such a conflict
of interest existed at the time of counseling, or exists now regarding
the present affidavit. Furthermore, we find that the appellate record
fully supports the previous determination. Accordingly, we find that
appellant's request for reconsideration should be denied.
CONCLUSION
After a review of appellant's request to reconsider, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. �1614.407(c), and it is the
decision of the Commission to DENY the request. The decision in EEOC
Appeal No. 01982929 (March 10, 1999) remains the Commission's final
decision. There is no further right of administrative appeal on the
decision of the Commission on this Request to Reconsider.
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
November 8, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations