0520100621
01-13-2011
Sherry A. Wimmer, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Sherry A. Wimmer,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Request No. 0520100621
Appeal No. 0120101788
Hearing No. 550-2009-00118X
Agency No. F-08-6453
DENIAL OF REQUEST FOR RECONSIDERATION
On September 15, 2010, Complainant timely requested reconsideration of
the decision in Sherry A. Wimmer v. Department of Justice, EEOC Appeal
No. 0120101788 (August 26, 2010). 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).
BACKGROUND
At the time of this complaint, Complainant worked as a Supervisory
Administrative Specialist (SAS), GS-0301-12, in the Agency's Las Vegas
Division, Las Vegas, Nevada. On March 26, 2008, Complainant filed an
EEO complaint alleging that the Agency discriminated against her on the
basis of race (African-American) when: (1) in December 2006, a GS-13
supervisor said "I don't have to listen to a GS-11;" (2) in December 2006,
and January 2007, another SAS said during meetings, "you make no sense
to me;" (3) in February 2007, a Financial Manager berated Complainant and
pointed his finger in her face; (4) in September 2007, the Office Supply
Technician (OST) would not process Complainant's invoices; (5) on November
16, 2007, Complainant received a rating of successful on her Performance
Appraisal Report (PAR); and (6) on March 11, 2008, the Agency informed
Complainant that it would not approve her travel to a conference.
By letter dated June 10, 2008, the Agency accepted issues (4),
(5), and (6); the Agency dismissed issues (1), (2), and (3) for
untimely contact with an EEO counselor pursuant to EEOC Regulation 29
C.F.R. � 1614.107(a)(2);1 and the Agency also dismissed her claim of
harassment/hostile work environment on the grounds that her collective
allegations did not constitute a claim of illegal discrimination.
After an investigation, Complainant requested a hearing before an EEOC
Administrative Judge (AJ). On April 24, 2009, the Agency filed a Motion
for a decision without a hearing (MSJ), and Complainant filed a statement
in opposition. On January 27, 2010, the AJ issued a decision without
a hearing, finding that, as to the three accepted allegations, that
(a) Complainant was not aggrieved when the supply technician failed to
properly process her invoices; (b) she did not demonstrate pretext when
the Agency rated her performance no higher than successful; and (c) she
did not demonstrate pretext when the Agency cancelled her attendance at
a conference due to budgetary concerns.
The previous decision, in pertinent part, affirmed the dismissal
of allegations (1), (2) and (3), and found that Complainant did not
demonstrate pretext in response to the Agency's explanations regarding
allegations (4), (5) and (6), i.e., (a) that OST was a difficult person,
rude to all, did not distinguish among races, and left in November 2007;
(b) that her appraisal rating was based on an accurate assessment of her
performance; and (c) that budgetary concerns prevented her attendance at
the conference. Like the AJ, the previous decision ordered the Agency
to contact Complainant within 15 days regarding her claim that she was
discriminated against when she was removed from her position as a Safety
Chairperson on July 17, 2009.
RECONSIDERATION ARGUMENTS
Complainant asserts, among other things, that the previous decision
contained erroneous interpretations of fact and law and that certain
parts of the decision conflicted with others; that, in issuing a summary
judgment decision, the AJ relied on hearsay evidence from her supervisor;
and that she was aggrieved and disrespected by a clique of Caucasian
co-workers since the beginning of her service with the Agency in January
2006.
The Agency did not file comments in response.
ANALYSIS AND FINDINGS
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 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). The Commission finds
that Complainant's request does not meet the regulatory criteria of 29
C.F.R. � 1614.405(b), in that, the 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. Complainant's contention that,
for example, language on pages 2 and 5 are contradictory is a misreading
of the decision, in that, the statement on page 2 is a statement of
fact regarding actions taken by the Agency; however, on page 6, the
previous decision found that allegations (1), (2) and (3) should not be
dismissed for untimeliness, but on the grounds that they failed to state
a claim of harassment. As to her claim of hearsay, we point out that all
statements in the Report of Investigation are affidavits taken under oath,
including Complainant's affidavit. Finally, we note that our review of
the record supports the previous decision's determination that allegations
(1), (2) and (3) were properly dismissed and that Complainant was not
discriminated against with respect to allegations (4), (5) and (6).
CONCLUSION
After review of 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 of the Commission in Appeal No. 0120101788 remains
the Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on a Request to Reconsider.
The agency is directed to comply with the Order below, repeated from
the previous decision.
ORDER
A. Within 15 days of the date of this decision, an Agency EEO
counselor shall contact Complainant to determine whether she wishes to
pursue her claim that she was discriminated against when she was removed
from her position as Safety Chairperson on July 17, 2009. If Complainant
wishes to proceed, the Agency shall resume processing of Complainant's
allegations in accordance with 29 C.F.R. � 1614.105.
B. Proof of the Agency EEO counselor's efforts to contact Complainant
regarding this claim, and the result thereof, must be sent to the
Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The Agency's report must contain supporting documentation,
and the Agency must send a copy of all submissions to the Complainant.
If the Agency does not comply with the Commission's order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHTS ON A REQUEST FOR RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0610)
This decision affirms the Agency's final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the Agency, or filed your appeal with the Commission.
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. Filing a civil
action will terminate the administrative processing of your complaint.
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
__1/13/11________________
Date
1 EEOC regulations and other information are available on the Commission's
website at www.eeoc.gov.
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0520100621
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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