05980573
11-01-2000
Elida Palomo, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Elida Palomo v. Department of the Air Force
05980573
November 1, 2000
.
Elida Palomo,
Complainant,
v.
F. Whitten Peters,
Secretary,
Department of the Air Force,
Agency.
Request No. 05980573
Appeal No. 01964158
Agency No. KHOF94726
Hearing No. 360-95-8214X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Elida
Palomo v. Department of the Air Force, EEOC Appeal No. 01964158 (March
6, 1998).<1> 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 the underlying complaint, complainant contends that she was
discriminated against based on race (Hispanic), national origin
(Hispanic), physical and mental disability ("stress"), and in reprisal
for prior EEO activity when, on August 17, 1994, she received an annual
performance rating of "fully successful" and an appraisal factor rating
total score of 67 for the appraisal period ending June 30, 1994. An EEOC
Administrative Judge (AJ) issued a decision without a hearing finding
no discrimination. Specifically, the AJ found that complainant failed
to establish a prima facie case of discrimination on any alleged basis,
and that even assuming arguendo complainant did so, the agency articulated
a legitimate non-discriminatory reason for its actions which complainant
failed to demonstrate was a pretext for discrimination. The agency's
final decision adopted the AJ's findings, and this Commission affirmed
on appeal.
In her request to reconsider the prior decision, complainant contends:
(1) the AJ erred in issuing a decision without a hearing because there
were disputed material facts; (2) there were similarly situated employees
outside her protected classes who were treated more favorably; and (3)
pretext was evidenced by her performance plan, which allegedly failed
to comply with applicable statutory or regulatory requirements.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
even assuming arguendo complainant established a prima facie case of
discrimination on any basis, 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.<2> The decision in EEOC Appeal No. 01964158
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
November 1, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2In light of this disposition, we do not reach the issue of whether or not
the AJ correctly determined that complainant failed to establish she is
an individual with a disability within the meaning of the Rehabilitation
Act.