05990754
11-21-2001
Pauline M. Horvath, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Pauline M. Horvath v. Department of the Navy
05990754
November 21, 2001
.
Pauline M. Horvath,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Request No. 05990754
Appeal No. 01972325
Agency No. 95-6585-005
Hearing No. 370-96-X2694
DENIAL OF REQUEST FOR RECONSIDERATION
Complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Pauline
M. Horvath v. Department of the Navy, EEOC Appeal No. 01972325 (May 13,
1999). Complainant alleged that she was discriminated against on the
bases of race (Caucasian), disability (Rheumatoid Arthritis) and reprisal
(prior EEO activity) when the Personnel Operations and Policy Division
Head (complainant's second level supervisor /S2) made untrue statements
to the Department of Labor, which resulted in the denial of her workers'
compensation claim.
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).
The Commission affirmed the final agency decision, finding that S2's
letter only represented the agency's position and interest to the Office
of Workers Compensation Programs (OWCP). We found that the letter did
not evidence discriminatory animus. Specifically, we concluded that
on the facts of this case, a finding of discrimination would permit
a collateral attack on the workers compensation process and would
require the Commission to judge the merits of complainant's workers'
compensation claim.
In the instant request for reconsideration, complainant submits as new
evidence the argument that management favorably assisted a Black female
employee, similarly situated to complainant, in obtaining her workers'
compensation, in a timely manner. We note, however, that complainant
did not raise this argument on appeal. The Commission has held that
arguments raised for the first time on request for reconsideration will
not be considered. See Choates v. Federal Deposit Insurance Corporation,
EEOC Request No. 05970012 (May 21,1998).
Complainant also contends that the discovery process would undoubtedly
reveal that other similarly situated employees out of complainant's
protected group, received more favorable treatment than she.
Complainant also asserts that the previous decision involved a
misapplication of law, namely that management declaration statements
during the investigation are in direct conflict with management statement
to OWCP. Complainant further contends that she suffered harm in that
her Workers' Compensation Claims were delayed approximately six years,
due to management's false statements. The Commission has held that while
the proper forum for contesting the outcome of an OWCP claim is with
the Department of Labor, the Commission has retained jurisdiction for
allegations that the agency mishandled the processing of a claim because
of discriminatory animus. See Foster v. U.S. Postal Service, EEOC Request
No. 05950693 (May 16,1996). In the instant request, complainant did not
show that the letter was motivated by a discriminatory animus, complainant
failed to show that the previous decision involved a clearly erroneous
interpretation of material fact or law or will have a substantial impact
on the policies, practices, or operations of the agency.
After a review of the 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. 01972325 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
November 21, 2001
__________________
Date