05a50735
05-20-2005
Christina M. Lester, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Christina M. Lester v. Department of Transportation
05A50735
05-20-05
.
Christina M. Lester,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Request No. 05A50735
Appeal No. 01A42730
Agency No. 2003-18175-FAA-06 (6-03-6079)
DECISION ON REQUEST TO RECONSIDER
On April 8, 2005, Christina M. Lester (complainant) timely initiated a
request to the Equal Employment Opportunity Commission to reconsider
the decision in Christina M. Lester v. Norman Y. Mineta, Secretary,
Department of Transportation, EEOC Appeal No. 01A42730 (March 4, 2005).
EEOC regulations provide that the Commission may, in its discretion,
reconsider any previous decision where the party demonstrates that:
(1) the previous decision involved a clearly erroneous interpretation of
material fact or law; or (2) the decision will have a substantial impact
on the policies, practices, or operation of the agency. 29 C.F.R. �
1614.405(b).
The previous decision dismissed the above-referenced complaint after
receipt of information that complainant had filed a civil action on
July 28, 2004, which raised the same claim as in the instant complaint,
i.e., that she was terminated from her position effective June 18, 2003.
As explained in the previous decision, the Commission's regulations
require that it cease and dismiss the processing of any pending appeal on
a complaint that raises the same issue as are raised in a civil action.
29 C.F.R. � 1614.409. After review of complainant's court filing and
agency complaint file, the previous decision dismissed the instant
complaint, affirming the agency's action. See 29 C.F.R. � 1614.107(a)(3).
In her request, complainant argued that the appeal herein is an
appeal from the agency's October 2003, dismissal of her complaint
as a preliminary act .... pursuant to 29 C.F.R. � 1614.107(a)(5),
and not from the agency's more recent dismissal of the complaint in
November 2004, because of the civil action. Complainant's argument
misconstrues the previous decision and the Commission's regulations.
The regulation at 29 C.F.R. � 1614.409 requires that the Commission
�terminate Commission processing of the appeal� where the complainant
has filed a civil action. In the matter before us, complainant filed
a civil action (CA No. C-04-03074 SI) in the U.S. District Court for
the Northern District of California - Oakland Division on July 28, 2004.
Based on review of the civil action and the record herein, the Commission
dismissed the appeal.<1> For the reasons stated therein, we find that
the previous decision properly dismissed complainant's appeal in accord
with the Commission's regulations.
In order to merit the reconsideration of a prior decision, the requesting
party must submit written argument that tends to establish that at least
one of the criteria of 29 C.F.R. � 1614.405(b) is met. The Commission's
scope of review on a request for reconsideration is narrow and is not
merely a form of a second appeal. Lopez v. Department of the Air Force,
EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS,
EEOC Request No. 05900850 (September 7, 1990). The Commission finds that
the complainant's request does not meet the regulatory criteria of 29
C.F.R. � 1614.405(b), in that, the request does not identify a clearly
erroneous interpretation of material fact or law, nor does it show that
the underlying decision will have a substantial impact on the policies,
practices or operation of the agency.
CONCLUSION
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. 01A42730 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on a request for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON 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
____05-20-05______________
Date
1Although complainant contended that she referred to two prior complaints
in her civil action, the issue of her dismissal, as she acknowledged,
is intertwined with these matters.