Patricia A. McGrath, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.

Equal Employment Opportunity CommissionSep 2, 1999
05971105 (E.E.O.C. Sep. 2, 1999)

05971105

09-02-1999

Patricia A. McGrath, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Army & Air Force Exchange Service), Agency.


Patricia A. McGrath, )

Appellant, )

) Request No. 05971105

v. ) Appeal No. 01955470

)

William S. Cohen, )

Secretary, )

Department of Defense, )

(Army & Air Force Exchange Service), )

Agency. )

)

DENIAL OF RECONSIDERATION

On September 24, 1997, Patricia A. McGrath (hereinafter referred to

as appellant) initiated a request to the Equal Employment Opportunity

Commission (Commission) to reconsider the decision in Patricia A. McGrath

v. William S. Cohen, Secretary, Department of Defense (Army & Air

Force Exchange Service), EEOC Appeal No. 01955470 (August 26, 1997).

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

reconsider any previous 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 a misapplication of established policy, 29

C.F.R. �1614.407(c)(2); and the 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, appellant's request is denied.

ISSUE PRESENTED

The issue presented herein is whether the previous decision properly

affirmed the agency's finding that appellant had not been subjected

to reprisal discrimination when she was terminated effective September

8, 1991.

BACKGROUND

The record in the case herein reveals that appellant, a Cashier Checker

at an agency service station, filed a formal complaint in September

1991, alleging reprisal discrimination with regard to her termination.

The notice of termination stated that management received a complaint

from a customer concerning appellant's behavior and attitude on June

21, 1991. The record also shows that appellant had been previously

counseled for being rude to customers, and received a written reprimand

and three suspensions for such behavior. Appellant asserted that there

was a conspiracy to terminate her, and that the customers' statements

were not true.

The agency accepted appellant's complaint, and conducted an investigation

with regard to the matter at issue. After appellant withdrew her request

for an administrative hearing, the agency issued a final decision finding

no discrimination. The final agency decision was affirmed on appeal.

The previous decision found that while appellant established a prima facie

case of reprisal, the agency articulated a legitimate, nondiscriminatory

reason for her termination, that is, the customer complaints concerning

rude behavior, and that appellant failed to show that the stated reason

was pretextual.

In her request for reconsideration, appellant merely reiterated her

assertion that there was a conspiracy to terminate her. Appellant

submitted a portion of the transcript from a 1991 proceeding in

U.S. District Court, as well as performance appraisals she received prior

to working at the service station, and letters of reference from family

members, friends and acquaintances. Appellant also included a medical

report showing that she was hospitalized in 1996.

The agency did not respond to appellant's request for reconsideration.

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(c) 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).

After a careful review of the previous decision, appellant's request

for reconsideration, and the entire record, the Commission finds that

appellant's request fails to meet the criteria in 29 C.F.R. �1614.407(c).

Specifically, appellant has presented no evidence to show that

the previous decision's finding of no discrimination was improper.

Appellant has failed to prove, by a preponderance of the evidence,

that she was terminated because of her prior EEO activity and not the

documented customer complaints. Further, appellant has not shown that

the documentation included with her request is material to the complaint

herein or was unavailable at the time the previous decision was issued.

Consequently, based on our review of the record, we find that appellant

has failed to provide evidence which would warrant a reconsideration of

the previous decision.

CONCLUSION

After a review of appellant's request for reconsideration, the previous

decision, and the entire record, the Commission finds that appellant's

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

it is therefore the decision of the Commission to DENY appellant's

request. The decision in EEOC Appeal No. 01955470 (August 26, 1997)

remains the Commission's final decision. There is no further right of

administrative appeal on a decision of the Commission on this Request

for Reconsideration.

STATEMENT OF RIGHTS - ON RECONSIDERATION

RIGHT TO FILE A CIVIL ACTION (S0993)

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. If you file a request to reconsider and also file a

civil action, filing a civil action will terminate the administrative

processing of your complaint.

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:

09-02-99

Date Frances M. Hart

Executive Officer

Executive Secretariat