05A20002
03-19-2002
Mary M. McIntosh, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, (National Institutes of Health) Agency.
Mary M. McIntosh v. Department of Health and Human Services
05A20002
03-19-02
.
Mary M. McIntosh,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
(National Institutes of Health)
Agency.
Request No. 05A20002
Appeal No. 01985967
Agency No. NIH-039-56
Hearing No. 120-97-4214X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Mary
M. McIntosh v. Department of Health and Human Services, EEOC Appeal
No. 01985967 (July 30, 2001). EEOC Regulations provide that the
Commission may, in its discretion, 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 her underlying complaint, complainant alleged discrimination on the
bases of Race (Black), color (black), and reprisal (prior Title VII
activity when):
(1) on March 13, 1995, complainant was given a performance evaluation
of �Fully Successful;
on March 13, 1995, the following statement was inserted into her
performance evaluation, �Timecards have been altered under the
responsibility of Ms McIntosh. Example Fauntroy, Perry.�;
in January 1995, managers were advised not to select complainant to
participate in various committees as she was not a good candidate;
on November 23, 1994, complainant's contract authority was undermined
by interfering with her efforts to hire an employee from a Temporary
Agency; and
complainant's appointment as the Acting Program Administrative Officer,
beginning August 1, 1995, was hindered by reducing the length of time
she spent in the acting position.
Believing she was a victim of discrimination, complainant, filed a formal
EEO complaint with the agency alleging that the agency had discriminated
against her as referenced above. Following a hearing, an EEOC
Administrative Judge (AJ) issued a decision finding no discrimination.
The agency's final order adopted the AJ's recommended decision. Our prior
appellate decision affirmed the agency. From this decision complainant
requests reconsideration.
In her request for reconsideration, complainant does not contend that
the previous decision involved an erroneous interpretation of law.
Instead she argues that the agency adopted a tactic of changing their
system of cataloging cases so as to confuse complainant and make it
difficult for her to meet the applicable deadlines for various filings
related to her claim. In addition, she argues that the evidence in the
record supports a finding in her favor. Regarding her contention about
the agency's changing of its system of cataloging cases, we note that
all of the incidents she alleged were considered in our prior decision.
Specifically, while our prior decision noted that 3, 4, and 5, when
viewed individually, were subject to dismissal for untimeliness, we
further found that, assuming arguendo that such incidents, together with
the timely challenged incidents, formed part of a continuing violation,
such behavior was insufficiently severe to constitute harassment.
After a review of the complainant's request for reconsideration, 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. 01985967 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
____03-19-02______________
Date