05A10527
07-06-2001
Arsilla C. Alvarez v. Department of the Interior
05A10527
July 6, 2001
.
Arsilla C. Alvarez,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
(Bureau of Land Management),
Agency.
Request No. 05A10527
Appeal Nos. 01A00737
Agency Nos. LLM-98-005, LLM-98-029
Hearing Nos. 350-99-8004X, 350-99-8005X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Arsilla
C. Alvarez v. Department of the Interior, EEOC Appeal No. 01A00737
(March 1, 2001). 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 EEOC Appeal No. 01A00737, the Commission found that complainant was not
discriminated against on the bases of her national origin (Hispanic) and
reprisal for prior EEO activity when: (1) she was subjected to harassment
and a hostile work environment while employed as a Staff Assistant, GS-5,
in the Roswell, New Mexico District Office; (2) she was not selected
to perform the collateral duty of contract officer representative on
October 20, 1997; and (3) she was not called to serve on fire duty between
February 1997 and June 1997. The Commission found that the Administrative
Judge's ultimate finding, that unlawful employment discrimination was not
proven by a preponderance of the evidence, was supported by the record.
In her request for reconsideration, the complainant maintains that
the appellate decision will have a substantial impact on the policies,
practices, or operations of the agency because management gave false
testimony under oath, large award amounts were given by the supervisor
and because management had others performing the duty of Initial Attack
Dispatchers for them.
With respect to complainant's claims of harassment and a hostile work
environment, hostile work environment harassment is actionable if it
sufficiently severe or pervasive to alter the conditions of complainant's
employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
Although complainant contends that the incidents were based upon her
national origin and prior EEO activity, the Commission finds that she
failed to provide any evidence to show that the alleged harassment
was in fact based upon her protected class or activity. Accordingly,
we agree that complainant failed to establish that was subjected to
unlawful harassment.
We also find that the record reveals that complainant was not scheduled
for fire duty between February and June 1997 because she did not specify
that she was available to work so her name showed up as �unavailable�
on the list of qualified dispatchers. With respect to complainant's
nonselection, the record reveals that complainant was not selected for
the position of contract representative because she earned the lowest
score of the three candidates. With respect to complainant's contentions
in her request, the Commission finds that complainant failed to provide
any evidence regarding her statements.
Therefore, after a review of the 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. 01A00737 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
July 6, 2001
__________________
Date