0520130285
07-12-2013
Lorna Bibbie, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Lorna Bibbie,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Request No. 0520130285
Appeal No. 0120113783
Agency No. CHI-10-0853-SSA
DENIAL
Complainant timely requested reconsideration of the decision in Lorna Bibbie v. Social Security Administration, EEOC Appeal No. 0120113783 (January 11, 2012). 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).
In the underlying case, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), color (light-skinned), age (over 40), and reprisal for prior protected EEO activity when: (1) on August 4, 2010, management placed her work on a 30-day 100-percent review; and (2) management threatened to place her on a performance enhancement plan after the 30-day 100-percent review.
The appellate decision affirmed the Agency's final decision regarding claim 1,1 which found that Complainant failed to prove that she was subjected to sex, color, age, or reprisal discrimination as alleged. Specifically, the appellate decision found that the Agency articulated a legitimate, nondiscriminatory reason for its actions; namely, it placed Complainant's work on a 30-day 100-percent review because she made numerous errors and did not accurately process her cases. The appellate decision cited testimony from Complainant's Supervisor, the Deputy Operations Manager, and the Module Manager. Moreover, the appellate decision found that Complainant failed to show that the articulated reason was a pretext for unlawful discrimination.
In her request for reconsideration, Complainant argued that the appellate decision erred in crediting management's testimony about her performance problems. In addition, Complainant argued that management targeted her by: (a) having the Specialist who reviewed her work charge errors that did not exist or that were exaggerated; and (b) ignoring the errors of other employees. Further, Complainant argued that management showed their "harmful intent" towards her when they denied her training requests prior to August 2010. Finally, Complainant argued that the appellate decision will allow management to continue to harass her and other employees without any accountability.
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices or operations of the Agency. 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, at Ch. 9, � VII.A. (Nov. 9, 1999). Instead, "[t]he burden is on the requesting party to make a substantial showing that its request meets one of the two prerequisites for a granting of reconsideration." Id. at Ch. 9, � VII.B.2. Here, we find that Complainant has not met her burden.
Specifically, Complainant has failed to show that the appellate decision clearly erred in finding no sex, color, age, or reprisal discrimination. As Complainant chose not to request a hearing, the appellate decision did not have the benefit of an EEOC Administrative Judge's credibility determinations after a hearing; therefore, it could only evaluate the facts based on the weight of the evidence presented. While Complainant disputes management's testimony, she has not shown that the appellate decision clearly erred in finding no pretext. In addition, we note that the Specialist who reviewed Complainant's work testified that "[t]he quality of her work and her job knowledge is decidedly substandard ... She is unable or unwilling to accept errors when provided with precise procedural references." Report of Investigation (ROI), Ex. 9, at 5-6. Moreover, Complainant's bare assertions are insufficient to show that management ignored similar errors committed by other employees or denied her training for discriminatory reasons.
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. 0120113783 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
___7/12/13_______________
Date
1 The Agency dismissed claim 2 pursuant to 29 C.F.R. � 1614.107(a)(1), for stating the same claim that is pending before or has been decided by the Agency. The appellate decision did not address the Agency's dismissal, noting that Complainant acknowledged raising claim 2 in a prior complaint and finding that the record supported her acknowledgment.
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0520130285
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520130285