05a50932
11-16-2005
Penny J. Seward, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Penny J. Seward v. Department of Veterans Affairs
05A50932
November 16, 2005
.
Penny J. Seward,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A50932
Appeal No. 01A52264
Agency No. 200L-0598-2004101402
Hearing No. 250-2004-00246X
DENIAL
Penny J. Seward (complainant) timely requested reconsideration of the
decision in Penny J. Seward v. Department of Veterans Affairs, EEOC
Appeal No. 01A52264 (May 5, 2005). 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 underlying complaint, complainant contended that she was subjected
to unlawful employment discrimination in reprisal for prior EEO activity
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., when, on or about January 26, 2004,
the agency failed to promote her to a GS-12, Supervisory Staffing position
and/or to reassign her to a GS-11 position in the Staffing Section.
On December 21, 2004, the EEOC Administrative Judge (AJ) concluded that
the preponderance of the evidence did not support a finding that the
agency discriminated against complainant on the basis of reprisal for
her prior EEO activity. On January 11, 2005, the agency issued a final
decision fully implementing the AJ's finding of no discrimination. The
AJ's decision found that complainant failed to prove that the agency's
articulated reason for failing to promote or reassign her, that the agency
believed it would be easier during its reorganization to reassign two
other individuals to the same wage grade without announcing the positions
competitively, was a pretext for discrimination. Our prior appellate
decision affirmed this finding. In her request, complainant essentially
repeats the arguments presented on appeal and contends that, insofar as
the Commission's prior decision found such arguments to be unpersuasive,
the prior decision contained clearly erroneous interpretations of fact
and law. The agency requests that we deny complainant's request.
After reconsidering 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. 01A52264 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
November 16, 2005
__________________
Date