05a30122
03-19-2003
Rosemary Cusato, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Rosemary Cusato v. Department of the Treasury
05A30122
03-19-03
.
Rosemary Cusato,
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Request No. 05A30122
Appeal No. 01A04327
Agency No. 99-3148
Hearing No. 170-A0-8028X
DECISION ON REQUEST TO RECONSIDER
On October 17, 2002, Rosemary Cusato (complainant) timely initiated a
request to the Equal Employment Opportunity Commission to reconsider the
decision in Rosemary Cusato v. Paul H. O'Neill, Secretary, Department
of the Treasury, EEOC Appeal No. 01A04327 (September 17, 2002). EEOC
regulations provide that the Commissioners may, in their 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).
Complainant filed a formal complaint on March 31, 1999, claiming
discrimination based on disability, and the agency accepted her claim
regarding non-selection for the position of Packing Machine Operator,
WG-03, on February 18, 1999. Following an investigation, a hearing
was held in April 2000, and the EEOC Administrative Judge (AJ) issued a
decision finding that the agency did not discriminate against complainant.
The agency issued a final decision agreeing with the AJ, and complainant
filed an appeal. The Commission's decision on appeal affirmed the AJ's
decision. In addition, the previous decision noted that it addressed only
the issue accepted by the agency, i.e., the February 1999 non-selection,
and that a subsequent non-selection in June 1999, discussed by complainant
in her appeal statement, was not considered.
In her request for reconsideration, complainant complained that the June
1999 non-selection should have been reviewed.<1> She contended that she
was unaware of EEO time limitations, and referred to several provisions
of the Commission's regulations, effective November 9, 1999, in support.
She also argued that she had presented evidence of discrimination.
In order to merit the reconsideration of a prior 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 a 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). For the following reasons
and after a careful review of the record, the Commission finds that
the complainant's request does not meet the regulatory criteria of 29
C.F.R. � 1614.405(b), in that, her request does not identify a clearly
erroneous interpretation of material fact or law, nor does it show that
the underlying decision will have a substantial impact on the policies,
practices, or operation of the agency.
Initially we address whether the previous decision properly excluded
consideration of the June 1999 non-selection. To initiate the EEO
complaint process, the Commission's regulations require that a complainant
bring his/her complaint to the attention of an EEO counselor within
45 days of an alleged discriminatory event or the effective date of
an alleged discriminatory personnel action. 29 C.F.R. � 1614.105(a).
There is nothing in the record showing that complainant ever raised
the June 1999 non-selection with an EEO counselor, and having never
brought the matter to the attention of an EEO counselor, it was never
processed and cannot be a viable issue before us. We find, therefore,
that the previous decision was correct when it did not address the matter.
As to complainant's claim that she was unaware of EEO time limitations,
we note that in her May 1, 1999, statement, she recognized that EEO
matters have time restrictions. See fn. 1, supra.
With regard to the merits of the February 1999 non-selection, for
purposes of further analysis, we assume, arguendo, and without so finding,
that complainant is entitled to coverage under the Rehabilitation Act.
Complainant's claims of disparate treatment are examined under the
tripartite analysis first enunciated in McDonnell Douglas Corporation
v. Green, 411 U.S. 792 (1973); see Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has stated
legitimate, nondiscriminatory reasons for its selection decision, the
complainant bears the ultimate burden to demonstrate by a preponderance
of the evidence that the reasons stated by the agency were not true
but rather were a sham or pretext for discrimination, i.e., the
agency's action was more likely than not influenced by discriminatory
considerations. U.S. Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-714 (1983); St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993);
Here, the agency explained its selection process, and we agree with
the AJ that the agency presented legitimate, nondiscriminatory reasons
for not selecting complainant, that is, her score of 91 was lower than
the scores of the applicants sent forward for interviews (96 and above).
The scorer explained the rating process, and while the scorer acknowledged
that she was aware of complainant's earlier injury, she also stated that
she was not influenced by it, since she had been informed by OWCP that
complainant was able to return to work.<2> We concur with the finding
of the AJ and the previous decision that complainant did not present
evidence demonstrating that the agency's explanation was not true and
based on discriminatory factors.
After a review of the complainant's request for reconsideration, 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. 01A04327 remains the Commission's final decision.
There is no further right of administrative appeal on the 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
_____03-19-03_____________
Date
1To the extent that complainant may be arguing that earlier
non-selections, e.g., a November 1998 event, should have been encompassed
within her complaint, we note that the record contains a statement
dated May 1, 1999, wherein she withdrew the issue of the November 1998
non-selection, acknowledging that it was untimely.
2Complainant had previously worked for the agency on a term appointment
that expired in March 1997. She was injured and treated for carpal
tunnel syndrome, apparently successfully.