Sharon P. Pindle, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 9, 2003
05A30771_r (E.E.O.C. Dec. 9, 2003)

05A30771_r

12-09-2003

Sharon P. Pindle, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.


Sharon P. Pindle v. Department of the Army

05A30771

December 9, 2003

.

Sharon P. Pindle,

Complainant,

v.

R.L. Brownlee,

Acting Secretary,

Department of the Army,

Agency.

Request No. 05a30771

Appeal No. 01A25024

Agency Nos. BXHMFO-97-12H1030

BXHMFO-98-03I0390

Hearing No. 100-A2-7172X

DENIAL OF REQUEST FOR RECONSIDERATION

Sharon P. Pindle (complainant) timely initiated a request to the Equal

Employment Opportunity Commission (EEOC or Commission) to reconsider

the decision in Sharon P. Pindle v. Department of the Army, EEOC Appeal

No. 01A25024 (August 27, 2002). EEOC Regulations provide that the

Commission may, in its discretion, 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 previous decision, the Commission affirmed an agency final order

which adopted the summary judgment decision of an EEOC Administrative

Judge (AJ) finding no discrimination regarding complainant's claims

of race and sex discrimination, and reprisal for engaging in prior

EEO activity. Complainant's claims concerned her non-selection for a

Traffic Management Specialist position and an evaluation on a performance

evaluation, as well as a claim of supervisor harassment resulting in a

hostile work environment.

In her request for reconsideration, complainant lists the following as

sources of error in the Commission's previous decision:

False information on comments made by witnesses was reported;

Some of my witnesses were never interviewed, but statements were

submitted for those witnesses (but rejected by the AJ because they were

not properly authenticated).

I was given the wrong time for the Pre-hearing interview (conference),

even though I tried on several occasions to get in touch with the AJ

to verify the time and phone number. The AJ never returned my call

to confirm.

The AJ faxed information to me to a fax number that I no longer had

access to nor mailed certified mail to me.

Complainant also submits a signed statement from a female agency

employee commenting on the conduct of the supervisor identified as the

discriminating agency official in her complaints, as well as copies of

e-mail correspondence from another female agency employee, reflecting

her difficulties with this same supervisor. Complainant also submits

copies of correspondence with the District Director at the Washington

Field Office demonstrating that she twice made complaints against the

AJ during the hearing process, to include those raised in items 1,

2, 3 and 4 above, and requested that the AJ be removed from the case.

Additionally, complainant submits copies of e-mail correspondence with

the agency concerning a time change for the pre-hearing conference.

In response, as to item 1, the agency asserts that complainant presents

no evidence to substantiate that witnesses provided false statements,

noting that numerous witnesses provided corroborated testimony which

failed to support complainant's claims. Regarding item 2, the agency

indicated that the investigator attempted to contact two of complainant's

witnesses, but to no avail. Further, the agency argues that the AJ

properly excluded certain witness statements submitted by complainant

during the hearing not only because they were unsigned, but also because

they were submitted approximately one month late. The agency also notes

that in her request for reconsideration, complainant now submits a signed

statement, but argues that she could have obtained and submitted this

evidence during the hearing, or on appeal, such that it may not now

properly be considered by the Commission.

As to item 3, the agency argues that complainant's claim that she

was unaware of the time change is disingenuous and possibly spurious.

Specifically, the agency notes that complainant's knowledge of this

change is demonstrated in her e-mail correspondence with the agency's

representative regarding this change, which reflects that the agency

made a request for this change, but that the AJ only changed the time of

the conference, but not the date. Additionally, the agency argues that

complainant's knowledge is also established in her written complaint to

the District Director, which is dated the same day that the pre-hearing

conference was scheduled, asking that the AJ be removed from the case.

The agency also noted that when complainant failed to appear for the

conference, the AJ made multiple unsuccessful attempts to contact her

on that day, but that complainant made no attempt to contact the AJ

or agency to re-schedule the conference. The agency noted that the

District Director denied complainant's request to remove the AJ.

Regarding item 4, the agency argues that complainant's mailing address

was of record all along, and remains unchanged, noting that it is the

complainant who bears the responsibility to provide current and accurate

contact information.

We find that complainant's contentions in her request for reconsideration

primarily concern the same claims of AJ misconduct and error she

raised during the hearing process, and which were addressed by the

District Director. We note that an AJ has broad discretion in the

conduct of a hearing, including matters such as discovery orders,

scheduling, admission/exclusion of evidence, and witness selection.

See 29 C.F.R. � 1614.109(c). Based on our review of the record,

notwithstanding complainant's contentions to the contrary, we find no

persuasive evidence of harmful error or that the AJ abused her discretion

in the processing of this case.

Additionally, we find that to support her request for reconsideration,

complainant submits a witness statement and copies of e-mail

correspondence from two female employees previously supervised by the

same supervisor identified as the discriminating agency official in

her complaints. We find that these documents, which were not part of

the appellate record, constitute new and material evidence to support

her request for reconsideration. However, the reconsideration criteria,

as set forth above, does not include the submission of new and material

evidence as a basis for reconsidering a previous Commission decision.

See 29 C.F.R. 1614.405 (b) et seq; Murphy v. Department of Veterans

Affairs, EEOC Request No.05A10724 (August 8, 2001). Nonetheless, even

if we were to presently consider this evidence, we do not find that it

demonstrates error in the previous decision. While this evidence may

show that the supervisor at issue lacks interpersonal management skills,

and favors those with a military background, both male and female,

we find that it is not probative in demonstrating race or sex-based

discriminatory animus or retaliation regarding the claims raised in the

instant complaints. Moreover, we concur with the agency that complainant

could have obtained and submitted this evidence during the hearing,

or on appeal, and yet failed to do so.

After a review of 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. 01A25024 remains the Commission's final decision. There is no

further right of administrative appeal on the decision of the Commission

on this 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

December 9, 2003

__________________

Date