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