0520170044
03-07-2017
Sherril W,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sherril W,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Request No. 0520170044
Appeal No. 0120140360
Hearing No. 480-2010-00601X
Agency No. SF090844SSA
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120140360 (September 22, 2016). 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(c).
At the time of events giving rise to the underlying complaint, Complainant worked as a GS-8 Senior Case Technician at the Agency's Office of Disability Adjudication and Review in San Diego, California. Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex, disability, age (54) and reprisal when:
1. After she requested unscheduled, same-day annual leave in lieu of sick leave for August 12, 2009 and August 20, 2009, S1 required her to provide additional medical documentation, disapproved her leave requests, and charged her as absent without leave (AWOL). She felt that she had provided sufficient medical documentation in connection with her leave requests.
2. On August 26, 2009, after she inquired about her delayed within-grade increase (WGI), S1 sent her two emails she felt were condescending, insulting, and rude:
a. "I have received your inquiries today about your AWOL balances and something about a pay grade increase. Your voice messages were incoherent and I am unclear what you are asking. Your time is better spent working up cases instead of calling me frequently throughout the day regarding such matters. You have worked up less than 1 case per day this month. You have already wasted enough Agency time this month."
b. "Step increases are delayed when there is unpaid leave. You had a substantial amount of LWOP from January 2007 - January 2009. No fix is warranted."
3. In a September 14, 2009, "Management Directive and Warning" memorandum, S1 stated that her use of email was excessive and inappropriate and her behavior was discourteous, unprofessional, and disrespectful. She felt that the memorandum consisted of vague, opinion-based situations taken out of context, including her efforts to get answers to valid questions.
4. In an October 30, 2009, performance appraisal for the October 2008 - September 2009 appraisal period, S1 gave her a Level 3 - Successful Contribution summary appraisal rating and a 3.0 Element Average rating. She felt that her performance deserved an award.
5. On January 13, 2010, despite having previously informed him that she did not like closed-door meetings with management in the absence of a representative of her choice or permission to tape-record the meeting, S1 insisted that she attend a closed-door meeting. She felt that the closed-door meetings were held to aggravate and sicken her, because he knew they made her extremely uncomfortable.
6. S1 gave her vague directions and orders about her work assignments.
Our prior appellate decision affirmed the Equal Employment Opportunity Commission Administrative Judge's decision by summary judgment which found in favor of the Agency, concluding Complainant failed to prove her discrimination claims.
In her request for reconsideration, Complainant expresses her disagreement with the previous decision and presents some of the same arguments she raised on appeal. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here.
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(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120140360 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests.
Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 7, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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