0520120616
12-05-2012
Magda B. Torres, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
Magda B. Torres,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Request No. 0520120616
Appeal No. 0120110722
Hearing No. 570-2009-00481X
Agency No. OS080146
DENIAL
Complainant timely requested reconsideration of the decision in Magda B. Torres v. Department of the Interior, EEOC Appeal No. 0120110722 (July 30, 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 prior decision, the Commission, among other things, affirmed the Agency's final order which found that Complainant did not establish discrimination with respect to her reassignment back to Washington, D.C., from Philadelphia. After a hearing, an EEOC Administrative Judge (AJ) found that the Agency articulated a legitimate, nondiscrirainatory reason for its decision to reassign Complainant back to Washington, D.C. Specifically, documents in the record revealed that both organizational and financial challenges resulted from Complainant's move from Washington, D.C., to Philadelphia. Documents confirmed that Complainant's presence in Washington D.C. was needed because she was the only senior administrative staff member who could assist new hires. Furthermore, the documents revealed that the Philadelphia office was being rented for $51,000 per year, but Complainant was the only full-time staff member who used the office. The Agency reported that it was able to find much more cost-effective office space for those who used the Philadelphia office on an as-needed basis.
The AJ also found that Complainant failed to establish that, more likely than not, the Agency's reasons for issuing her the directed reassignment was a pretext for discrimination. Rather, the AJ found that Complainant's initial reassignment from Washington, D.C., to Philadelphia was ill-conceived and revealed a lack of communication and organization within the Agency. The AJ noted that Complainant's prior supervisor reassigned Complainant to Philadelphia (at her request) and then stopped working for the Agency. The Agency noted that the prior supervisor
created the Philadelphia office without approval from upper-level manageraent, and left no direction regarding its operation after his departure from the Agency. Accordingly, Complainant's situation was found to be distinguishable from those of other employees who had been allowed simply to change their duty stations because in Complainant's situation, a new office was created. The AJ found that the Agency's testimony in this regard was credible.
For the most part, the AJ found that, despite what he characterized as the Agency's "irrational and illogical" actions, discrimination could not be inferred and that in all of Complainant's arguments, she failed to establish that discrimination occurred.
In her request for reconsideration, Complainant takes issue with the determination that her reassignment was not based on discriminatory factors. She maintains that the Commission's analysis is contrary to the fundamental principles used in evaluating cases of discrimination based on reprisal because she established a prima facie cases of reprisal discrimination and prima facie cases of discrimination based on sex and national origin.
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. The Commission has held that merely rearguing the facts of a case is improper in a request for reconsideration. Bartlomain v. U.S. Postal Service, EEOC Request No. 05910436 (Oct. 10, 1991).
We also note that that the focus of the previous decision was not whether Complainant established prima facie cases of discrimination based on sex, national origin or reprisal, but Complainant's failure to establish that discrimination played a role. The AJ's decision in this regard is supported by substantial evidence in the record.
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. 0120110722 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
___12/5/12_______________
Date
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0520120616
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120616