Samiah E. Baroni, Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 7, 2012
0520120509 (E.E.O.C. Dec. 7, 2012)

0520120509

12-07-2012

Samiah E. Baroni, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.


Samiah E. Baroni,

Complainant,

v.

John M. McHugh,

Secretary,

Department of the Army,

Agency.

Request No. 0520120509

Appeal No. 0120110259

Agency No. ARBRAGG10APR01

DENIAL

Complainant timely requested reconsideration of the decision in Samiah E. Baroni v. Department of the Army, EEOC Appeal No. 0120110259 (May 24, 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).

The previous decision dismissed Complainant's appeal as untimely filed, noting that Complainant's appeal was due no later than June 28, 2010, but had not been filed until October 6, 2010. The decision noted Complainant's argument that she was unable to timely file her appeal because of the sudden and ultimately fatal, illness of her sister, which required her to care for her sister's family. While the decision acknowledged the gravity of Complainant's situation, it concluded that Complainant had not shown that she was so incapacitated as to have been unable to timely file her appeal.

In her request for reconsideration, Complainant for the first time asserts that she was also dealing with the grief of discovering that her adult son, with whom she had recently been reunited after being separated from him via non-custodial parent kidnapping years earlier, was suffering from a serious genetic illness.

In its reply, the Agency argues that Complainant has not met the criteria for reconsideration. The Agency notes that the testing and diagnosis of Complainant's son was ongoing from March through November 2010, and that Complainant learned of her son's diagnosis some weeks after her appeal was due.

We note 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) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency.

We are by no means unsympathetic to Complainant's circumstances. However, the information presented by Complainant in her request was largely available to her at the time her appeal was filed in October 2010, but was not submitted at that time. Further, her request does not establish that the previous decision was clearly erroneous based on the information available to the Commission at that time, nor that it will have a substantial impact on the policies, practices, or operations of the Agency.

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. 0120110259 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

December 7, 2012

Date

2

0520120509

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0520120509