0520120264
05-09-2012
Betty Jo Kelly, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Betty Jo Kelly,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Request No. 0520120264
Appeal No. 0120103322
Agency No. OHA051864SSA
DENIAL
Complainant timely requested reconsideration of the decision in Betty Jo Kelly v. Social Security Administration, EEOC Appeal No. 0120103322 (December 22, 2011). 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).
The facts and procedural background are set forth in the previous decision and are incorporated herein by reference. We note the following salient facts: On December 21, 2005, Complainant filed a complaint alleging that she was harassed in retaliation for her prior EEO activity when management (1) denied her request for official time; (2) monitored her phone calls; and (3) denied her request for a three-step ladder. The Agency accepted claims (1) and (2), but dismissed claim (3) on the grounds that it was moot because Complainant had retired. The Agency went on to find that Complainant failed to established discriminatory harassment with regard to claims (1) and (2). The previous decision, noting that Complainant did not contest the Agency's dismissal of claim (3) on appeal, found that the Agency's determination that Complainant did not establish discriminatory harassment with respect to claims (1) and (2) was correct.
In her request for reconsideration, Complainant argues that the Agency unreasonably delayed the processing of her complaint and should have completed it before her retirement. She also maintained that she erred in not addressing claim (3) in her appeal. Finally, Complainant maintained that, in the future, agencies might delay the processing of cases where employees are near retirement.
Complainant is reminded that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9 � VII.A. (Nov. 9, 1999). A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Here, we find that Complainant has not met either criterion. Complainant has not put forth any arguments or contentions that were not previously considered in rendering the underlying decision, or were the subject of the underlying appeal; therefore, the Commission finds that Complainant has not demonstrated that the underlying decision involved a clearly erroneous interpretation of material fact or law. Neither has Complainant demonstrated, other than mere speculation, that the underlying decision would have a substantial impact on the policies, practices, or operations of the Agency.
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(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120103322 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 (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
__5/9/12________________
Date
2
0520120264
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120264