Mary F. Walden, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs Agency.

Equal Employment Opportunity CommissionNov 8, 1999
05990568 (E.E.O.C. Nov. 8, 1999)

05990568

11-08-1999

Mary F. Walden, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs Agency.


Mary F. Walden, )

Appellant, ) Request No. 05990568

) Appeal No. 01982929

)

v. )

)

Togo D. West, Jr., )

Secretary, )

Department of Veterans Affairs )

Agency. )

)

DENIAL OF REQUEST FOR RECONSIDERATION

On April 9, 1999, Mary F. Walden (appellant) filed a request with this

Commission to reconsider the decision in Mary F. Walden v. Department

of Veterans Affairs, EEOC Appeal No. 01982929 (March 10, 1999).

EEOC Regulations provide that the Commissioners may, in their discretion,

reconsider any previous Commission decision. 29 C.F.R. �1614.407(a). The

party requesting reconsideration must submit written argument or evidence

which tends to establish one or more of the following three criteria:

new and material evidence is available that was not readily available

when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);

the previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy,

29 C.F.R. �1614.407(c)(2); and the previous decision is of such

exceptional nature as to have substantial precedential implications,

29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, it is the

decision of the Commission to deny appellant's request.

ISSUE PRESENTED

The issue presented is whether the previous decision properly affirmed

the agency's dismissal of one allegation in appellant's complaint for

failure to seek EEO counseling.

BACKGROUND

It is undisputed that appellant initiated EEO Counselor contact on

September 16, 1997, and subsequently filed a formal complaint on January

30, 1998. In her complaint, she alleged discrimination on the bases

of race (Caucasian), color (white), sex (female), age (DOB:4/17/26)

and reprisal, when:

1) she was not promoted on September 16, 1997;

2) she was harassed; and

3) she was subjected to a hostile working environment.

On January 30, 1998, the agency issued its final decision (FAD) dismissing

allegation 1 because the Counselor's Report did not reflect that it

was discussed, and because it was not �like or related� to the other

allegations in appellant's complaint.

On appeal, appellant submitted a copy of the Report of Final Interview,

which merely set out the standard rules for pursuing a formal complaint,

but otherwise offered no statement or evidence in support of her appeal.

The prior decision affirmed the FAD's dismissal of allegation 1 pursuant

to 29 C.F.R. 1614.107(b). In particular, the prior decision concurred

that the record failed to show that appellant had raised allegation 1

with the Counselor, and also that allegation 1 was not �like or related�

to the other two allegations in the complaint.

ANALYSIS AND FINDINGS

As discussed above, the Commission may, in its discretion, reconsider

any previous decision when the party requesting reconsideration submits

written argument or evidence which tends to establish that any of

the criteria of 29 C.F.R. �1614.407 is met. In order for a case to

be reconsidered, the request must contain specific information which

meets the requirements of this regulation. It should be noted that the

Commission's scope of review on a request to reconsider is limited. Lopez

v. Department of the Air Force, EEOC Request No. 05890749 (September 28,

1989). Furthermore, a request to reconsider is not "a form of second

appeal." Regensberg v. United States Postal Service, EEOC Request

No. 05900850 (September 7, 1990); Spence v. Department of the Army,

EEOC Request No. 05880475 (May 31, 1988).

In support of her request to reconsider, appellant submits an affidavit

in which she reiterates her contention that she discussed allegation

1 with the EEO Counselor on September 16, 1997. She also submits an

affidavit from the EEO Counselor, who denies that this allegation

was discussed with her at any time during the EEO counseling process.

Through her representative, appellant also argues, in effect, that the EEO

Counselor was biased throughout the process because she was a management

official at the facility where the alleged discrimination took place.

Appellant also argues that the EEO Counselor's present affidavit must

be discredited, because she remains a management official at the same

office where appellant also still works, and where other witnesses also

remain employed.

In considering these statements, we note that the EEO Counselor's

credibility could have been placed at issue previously, and, as such, this

contention does not now constitute �new evidence� that was unavailable

at the time the previous decision was issued. Moreover, in specifically

addressing the credibility of the EEO Counselor's present affidavit,

we find that appellant has not submitted any evidence, new or otherwise,

to support her argument. Instead, she notes only that the agency recently

changed its EEO procedures to permit aggrieved employees to contact

EEO Counselors located at other agency offices, presumably to avoid the

potential for a conflict of interest. Here, however, neither evidence nor

explanation is offered to specifically demonstrate that such a conflict

of interest existed at the time of counseling, or exists now regarding

the present affidavit. Furthermore, we find that the appellate record

fully supports the previous determination. Accordingly, we find that

appellant's request for reconsideration should be denied.

CONCLUSION

After a review of appellant's request to reconsider, the previous

decision, and the entire record, the Commission finds that the request

fails to meet the criteria of 29 C.F.R. �1614.407(c), and it is the

decision of the Commission to DENY the request. The decision in EEOC

Appeal No. 01982929 (March 10, 1999) remains the Commission's final

decision. There is no further right of administrative appeal on the

decision of the Commission on this Request to Reconsider.

RIGHT TO FILE A CIVIL ACTION (P0993)

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.

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

November 8, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations