0520120212
06-15-2012
Cathea M. Simelton,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Agricultural Marketing Service),
Agency.
Request No. 0520120212
Appeal No. 0120113087
Agency No. AMS-2009-01128
DENIAL
Complainant timely requested reconsideration of the decision in Cathea M. Simelton v. Department of Agriculture, EEOC Appeal No. 0120113087 (November 23, 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 previous decision affirmed the Agency's final determination of no breach of settlement. The record reflects that Complainant and the Agency had entered into a settlement agreement that provided, in relevant part, that the Agency would "offer [Complainant] a GS-9 Agricultural Marketing Specialist position, GS-1146-9, located in the Livestock and Seed Procurement Branch, Washington, D.C., with an effective date of August 17, 2009." Complainant subsequently alleged breach of the settlement agreement when she was not afforded non-competitive career-ladder promotion to the GS-11 level, arguing that she was promised a GS-9/12 career-ladder position. The previous decision noted that the terms of the settlement agreement were governed by the plain language of the agreement as reduced to writing, which promised Complainant only a GS-9 position.
On reconsideration, Complainant reiterated her arguments in support of a finding of breach. The Agency, in reply, opposed the request.
We note 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) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, 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. Complainant has not done so here. As noted in the previous decision, we look to the plain language of the settlement agreement, as reduced to writing, to determine the rights and obligations of the parties.
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. 0120113087 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
June 15, 2012
Date
2
0520120212
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120212