05A61056
09-27-2006
Leola L. Rice, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (U.S. Immigration and Customs Enforcement), Agency.
Leola L. Rice,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(U.S. Immigration and Customs Enforcement),
Agency.
Request No. 05A61056
Appeal No. 01A52575
Agency No. 030135
DENIAL
Complainant timely requested reconsideration of the decision in Leola
L. Rice v. Department of Homeland Security, EEOC Appeal No. 01A52575
(June 30, 2006). 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).
However, 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 (rev. Nov. 9, 1999), at
9-17.
In her request, complainant asks the Commission to "accept" her claims
which she raised for the first time on appeal; namely, that she was
denied a reasonable accommodation and was constructively discharged
from her position, when she was not offered a light duty position.
As explained in our decision on appeal, we cannot accept new claims at
this stage of processing.
This Commission carefully considered all of the record evidence at the
time it rendered the initial decision in question, and complainant has
offered no persuasive reason why this decision should be reconsidered now.
Therefore, after reconsidering 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. 01A52575 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request. The Commission
directs the agency to take corrective action in accordance with this
decision and the Order below.
ORDER
The agency is ordered to take the following remedial action:
1. Expunge the "Fully Successful" rating on complainant's performance
appraisal at issue here, and replace it with an "Excellent" rating;
2. Pay or bestow on complainant any awards, benefits, or recognitions to
which she may have been entitled had she received the "Excellent" rating;
3. Post the attached notice, as detailed below;
4. Take all necessary corrective, curative, or preventive action to
ensure that similar violations of the law will not recur. See 29 C.F.R. �
1614.501(a)(2);
5. Provide a minimum of sixteen hours of EEO training, with special
emphasis on the agency's obligations under Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq., to the responsible
management official in this matter;
6. Consider taking appropriate disciplinary action against the responsible
management official. The Commission does not consider training to
be disciplinary action. The agency shall report its decision to the
compliance officer. If the agency decides to take disciplinary action,
it shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline. If any of the responsible management officials
have left the agency's employ, the agency shall furnish documentation
of their departure date(s).
7. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation
of any other benefits due complainant, including evidence that the
corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Examinations Office in New York,
New York copies of the attached notice. Copies of the notice, after
being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
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:
__________________ September
27, 2006
Carlton M. Hadden, Director
Date
Office of Federal Operations
2
05A61056
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
05A61056