05A21207
12-12-2002
Viola E. Stewart, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Logistics Agency) Agency.
Viola E. Stewart v. Department of Defense
05A21207
December 12, 2002
.
Viola E. Stewart,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Logistics Agency)
Agency.
Request No. 05A21207
Appeal No. 01A02228
Agency No. JH-95-019
Hearing No. 170-98-8515X
DENIAL OF REQUEST FOR RECONSIDERATION
INTRODUCTION
Viola E. Stewart (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Viola E. Stewart v. Department of Defense, EEOC Appeal
No. 01A02228 (August 7, 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). For the reasons set forth herein, complainant's request
is denied
BACKGROUND
Complainant, a Property Disposal Specialist, GS-1104-09, at the
agency's Defense Reutilization and Marketing Office on the Letterkenny
Army Depot in Chambersburg, PA, filed a complaint on July 25, 1995,
alleging discrimination on the bases of race (African- American),
color (black), religion (Protestant), sex (female), national origin
(African-American/Blackfoot Indian), disability (knee injury and stress),
age (56) and reprisal (prior EEO activity) when: (1) management failed
to rotate her into the acting supervisory duties as of June 22, 1995;
(2) management failed to have her co-workers treat her with decency
and respect; (3) management allowed a co-worker to make her look bad
by putting a supervisor on hold for ten minutes making it seem as if
complainant was inefficient; (4) management allowed a temporary employee
to intimidate complainant; and (5) management did not take appropriate
action against a co-worker who threw a box of doughnuts at complainant.
Complainant requested a hearing before an EEOC Administrative Judge
(AJ) who issued a Decision without a Hearing finding that complainant
failed to establish a prima facie case of discrimination as to each
claim. The agency adopted the decision and complainant appealed to
the Commission. The Commission affirmed the agency's order.
CONTENTIONS ON REQUEST FOR RECONSIDERATION
Complainant disagrees with the Commission's Decision and argues that
sufficient facts support her claims. The agency contends that the
request should be denied.
ANALYSIS AND FINDINGS
Complainant asserts in her request for reconsideration matters which
were available before the AJ's decision, and which are of a similar
nature to matters previously raised. Complainant has not demonstrated
that the previous appellate decision involved a clearly erroneous
interpretation of material fact or law when it concluded that the AJ's
decision was appropriate. The AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Complainant is basically rearguing her complaint and has
failed to meet the stated criteria for reopening the previous decision.
In order to merit the reconsideration of a prior decision, the requesting
party must submit written argument that meets at least one of the
criteria of 29 C.F.R. � 1614.405(b). Complainant has not done this.
A request for reconsideration is not a second opportunity for appeal,
and the Commission's scope of review on a request for reconsideration is
narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989); Regensberg v. USPS, EEOC Request No. 05900850
(September 7, 1990). Accordingly, complainant's request fails to meet
the criteria of EEOC Regulation 29 C.F.R. 1613.1614.405(b).
CONCLUSION
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. 01A02228 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 12, 2002
Date