05a00795
03-15-2001
Queenie Mitchell, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Queenie Mitchell v. Department of the Army
05A00795
03-15-01
.
Queenie Mitchell,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Request No. 05A00795
Appeal No. 01985796
Agency Nos. 94030255; 94050109
DECISION
On May 26, 2000, Queenie Mitchell (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission) to
reconsider the decision in Queenie Mitchell v. Louis Caldera, Secretary,
Department of the Army, EEOC Appeal No. 01985796 (April 17, 2000).
EEOC regulations provide that the Commission may, in its discretion,
reconsider any previous decision where the party demonstrates that:
(1) the previous decision involved a clearly erroneous interpretation of
material fact or law; or (2) the decision will have a substantial impact
on the policies, practices or operation of the agency. 29 C.F.R. �
1614.405(b).<1> For the reasons set forth below, the complainant's
request is denied.
The issue presented for decision is whether the complainant's request
meets the criteria for reconsideration.
Complainant was employed as a Psychologist (Drug and Alcoholism Counselor)
at Fort Hood, Texas. She filed formal complainants in February and
April 1994, alleging discrimination on the basis of reprisal for prior
EEO activity when (a) on October 14, 1993, she was denied a request to be
downgraded to a Social Services Assistant, GS-186-7, in order to perform
Triage Counseling; (b) from October 18, 1993 until November 12, 1993,
she was required to perform Triage Counseling for 20 hours per week,
whereas her peers performed those duties for 4 to 8 hours per week;
(c) on February 3, 1994, S-1, her supervisor, detailed her to duties
at a recreation center; and (d) on February 4 and 18, 1994, management
characterized her as being incompetent and recommended immediate removal
of her clinical duties. The previous decision affirmed the agency's
finding of no discrimination.
In response to her claims, the agency explained that, with regard to
(a), a staff shortage and high caseload required her to remain in her
present position; with regard to (b), assignment to Triage Counseling
for 20 hours per week was intended to ease complainant's transition
to full counseling duties; with regard to (c), complainant was under
investigation on charges of misconduct; and with regard to (d), removal
was recommended based on four incidents of gross negligence.
Complainant has submitted a request to the Commission to reconsider
the previous decision, contending that certain matters were ignored.
She asserts that she was given too much work and that she was not guilty
of the charges against her. In order to merit the reconsideration of
a prior Commission decision, the requesting party must submit written
argument that tends to establish that at least one of the criteria of
29 C.F.R. � 1614.405(b) is met. The Commission's scope of review on a
request for reconsideration is narrow and is not merely a form of second
appeal. Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989); Regensberg v. USPS, EEOC Request No. 05900850
(September 7, 1990).
Complainant claimed discrimination based on reprisal for prior EEO
activity. Such claims are examined under the tripartite analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). Hochstadt v. Worcester Foundation for Experimental Biology, Inc.,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976).
Where the agency articulated legitimate, nondiscriminatory reasons for
its actions, the burden returned to the complainant to demonstrate by a
preponderance of the evidence that the agency's reasons were a pretext
for discrimination. Department of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993); U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
715-716 (1983). Complainant can demonstrate pretext by persuading the
fact finder by preponderant evidence that the stated reasons were not the
true reasons or that the agency acted on the basis of a prohibited factor.
See Reeves v. Sanderson Plumbing Products, Inc., � U.S. �, 120 S.Ct. 2097
(2000).
With regard to her claim based on retaliation, complainant has not
provided probative evidence that the acting agency official(s) took
the actions at issue because of complainant's prior protected activity
or sought to deter complainant or others. See EEOC Compliance Manual
on Retaliation, No. 915.003 (May 20, 1998), p. 8-16. Complainant's
arguments address the merits of the charges but do not demonstrate pretext
or that the previous decision erred. We find therefore that the previous
decision properly determined that the agency did not discriminate against
complainant.
CONCLUSION
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
complainant's request fails to meet any of the criteria of 29 C.F.R. �
1614.405(b), and it is the decision of the Commission to deny the
complainant's request. The decision of the Commission in EEOC Appeal
No. 01985796 (April 17, 2000) remains the Commission's final decision.
There is no further right of administrative appeal from a decision of
the Commission on a request for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON 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
____03-15-01______________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.