________________, Complainant,v.John Ashcroft, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionMar 6, 2003
05A30414_rev (E.E.O.C. Mar. 6, 2003)

05A30414_rev

03-06-2003

________________, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.


________________ v. Department of Justice

05A30414

March 6, 2003

.

________________,

Complainant,

v.

John Ashcroft,

Attorney General,

Department of Justice,

Agency.

Request No. 05A30414

Appeal No. 01A14612

Agency Nos. F-98-5013, F-98-5016, F-98-5057,

F-98-5080 & F-98-5121

DENIAL OF REQUEST FOR RECONSIDERATION

_____________________ (complainant) timely initiated a request to the Equal

Employment Opportunity Commission (EEOC or Commission) to reconsider

the decision in ___________ v. Department of Justice, EEOC Appeal

No. 01A14612 (December 23, 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).

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). In five formal

complaints, complainant alleged that she was discriminated against

on the basis of sex (female) and subjected to retaliation for prior

EEO activity when she was subjected to a hostile work environment

and disparate treatment between April 1997 and November 1997. In the

previous decision, the Commission concluded that complainant failed to

establish that she was discriminated against or subjected to retaliation.

In her request for reconsideration, complainant contends that the

appellate decision involves clearly erroneous interpretations of material

facts and law and that it will have a substantial impact on the policies,

practices and operations of the agency. In support of this contention

she essentially reiterates arguments raised on appeal and throughout

the investigation, noting that management officials were dishonest

throughout the investigation and that the evidence supports her claims.

She also argues, among other things, that because of the complex nature

of her case and the voluminous nature of the investigation, once it

was assigned to an attorney it should have taken 12 to 18 months for a

decision to be issued, rather than the mere two months that it took.

After a careful review of the entire record, we find that complainant

failed to establish either of the criteria for granting a request for

reconsideration. The arguments that she raises were previously considered

when rendering the appellate decision. She argues, for example, that the

relevant management official (RMO2) was aware of complainant's prior EEO

activity as of June 9, 1997 and that the previous decision's finding to

the contrary is in error. Complainant points to documents created by RMO2

which indicate that on June 9, 1997, RMO2 made notations during a meeting

she had with complainant which include the statement that complainant

was �aware of the EEO and EAP programs.� Complainant further notes that

RMO2's type-written version of these meeting notes does not include this

statement and concludes that this proves that RMO2 knew as of June 9,

1997 that complainant had contacted an EEO counselor on June 9, 1997.

A review of the file establishes that complainant made this argument

on appeal and that the appellate decision nonetheless concluded that

RMO2 did not know of complainant's prior protected activity until June

16, 1997. This conclusion is not erroneous. The fact that RMO2 knew

on June 9, 1997 that complainant was aware of the EEO and EAP programs

does not establish that she knew complainant had engaged in protected

EEO activity at that point.

Furthermore, complainant's contention that the previous decision was

erroneous because it was issued too quickly is without merit. As noted

in the decision, the entire investigative file, including complainant's

lengthy appeal brief and the documents attached to it were carefully

reviewed prior to the issuance of the decision. Complainant failed to

demonstrate that the decision involved a clearly erroneous interpretation

of material law or fact, or that it will have a substantial impact on

the policies, practices or operations of the agency. Accordingly, it

is the decision of the Commission to deny the request. The decision

in EEOC Appeal No. 01A14612 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

March 6, 2003

Date