S. Ann McCall, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 29, 2000
05a01020 (E.E.O.C. Aug. 29, 2000)

05a01020

08-29-2000

S. Ann McCall, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


S. Ann McCall v. Department of Veterans Affairs

05A01020

08-29-00

.

S. Ann McCall,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Request No. 05A01020

Agency No. 99-0240

Hearing No. 150-99-8648X

DECISION

On July 13, 2000, S. Ann McCall (complainant) timely initiated a

request to the Equal Employment Opportunity Commission (the Commission)

to reconsider the decision in S. Ann McCall v. Togo D. West, Jr.,

Secretary, Department of Veterans Affairs, EEOC Appeal No. 01A02912

(June 28, 2000). EEOC regulations provide that the Commission may,

in its discretion, reconsider any previous decision where the party

demonstrates that: (1) the previous decision involved a clearly

erroneous interpretation of material fact or law; or (2) the decision

will have a substantial impact on the policies, practices or operation

of the agency. 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. � 1614.405(b)).<1> For the reasons

set forth below, the complainant's request is denied.

The issue presented is whether the previous decision properly found

that the agency did not discriminate against complainant based on her

sex and age (52) when a position was filled through lateral transfer.

In her complaint, complainant contended that she was not allowed to

compete for a position that was filled through the lateral transfer

of another employee. In the Request to Reconsider (RTR), complainant

contends that the affidavit of a witness was not the final version and

that the witness did not have sufficient time to prepare her document.

Neither of these matters, even if true, demonstrate that the agency's

reasons for its actions were pretextual or that the EEOC Administrative

Judge erred in issuing a decision without a hearing.

After a careful review of the record, the Commission finds that

complainant's request does not meet the regulatory criteria of 29 C.F.R. �

1614.405(b).

CONCLUSION

After a review of the complainant's request for reconsideration, the

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

complainant's request fails to meet any of the criteria of 29 C.F.R. �

1614.405(b), and it is the decision of the Commission to deny the

complainant's request. The decision of the Commission in EEOC Appeal

No. 01A02912 (June 28, 2000) remains the Commission's final decision.

There is no further right of administrative appeal from a decision of

the Commission on a request for reconsideration.

STATEMENT OF COMPLAINANTS' RIGHTS - ON REQUEST FOR RECONSIDERATION

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)

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

___08-29-00_______________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.