0520110536
09-22-2011
Jody A. George, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Indian Health Service), Agency.
Jody A. George,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Indian Health Service),
Agency.
Request No. 0520110536
Appeal No. 0120083186
Hearing No. 550-2007-00332x
Agency No. IHS-04306
DENIAL
Complainant timely requested reconsideration of the decision in Jody
A. George v. Department of Health & Human Services, EEOC Appeal
No. 0120083186 (June 3, 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: our previous decision affirmed the decision of an EEOC
Administrative Judge (AJ) finding, without a hearing, that the Agency
did not discriminate against or harass Complainant. The AJ held that
Complainant failed to demonstrate pretext in response to the Agency's
legitimate, nondiscriminatory reasons and found that she did not establish
her claim of harassment.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant argued, among other
things, that it was incorrect to state that she did not dispute the
veracity of the Agency’s claims. For example, she maintained that
she disputed the contention that she was chronically tardy; used an
excessive amount of leave; or suffered from performance deficiencies.
Complainant also maintained that the AJ, by finding that her comments were
“self-serving,” improperly weighed the evidence in the Agency’s
favor instead of accepting her declarations at face value. Finally,
Complainant maintained that the AJ did not explain to her that she needed
to present evidence.
The Agency did not provide comments.
ANALYSIS AND FINDINGS
We remind Complainant 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. 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 no evidence that Complainant has met the criteria for
reconsideration.
Both the prior decision and the AJ found that the record supported the
Agency’s position that Complainant had chronic tardiness, excessive
leave usage, and performance deficiencies. In her request, Complainant,
as she did below, has not presented any evidence that establishes that
she was treated differently because of her age, sex or prior EEO activity.
In addressing an Administrative Judge’s issuance of a decision without a
hearing, a party’s opposition must consist of more than mere unsupported
allegations or denials and must be supported by affidavits or other
competent evidence setting forth specific facts showing that there is
a genuine issue for a hearing. See Celotex v. Catrett, 477 U.S. 317,
324 (1986). Complainant provided no such evidence. Although the AJ,
we note, never used the term “self-serving,” we do not find that the
previous decision’s use of the term indicates an improper weighing
of evidence. Instead, it reflects an observation that the record did
not contain evidence that disputed the Agency’s assertions nor did it
contain evidence of a discriminatory or retaliatory motive on the part
of the Agency.
Finally, we note that a Complainant always bears the burden of proving
discrimination.
CONCLUSION
After review of the previous decision, the entire record, and
Complainant’s request, 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. 0120083186 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
____9/22/11______________
Date
2
0520110536
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110536