05a01039
01-25-2001
Sharon Finizie, Complainant, v. John Hanson, Acting Secretary, Department of Veterans Affairs, Agency.
Sharon Finizie v. Department of Veterans Affairs
05A01039
January 25, 2001
.
Sharon Finizie,
Complainant,
v.
John Hanson,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A01039
Appeal No. 01973596
Agency No. 95-0151; 95-0806
Hearing No. 170-95-8516X; 170-95-8517X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Sharon
Finizie v. Department of Veterans Affairs, EEOC Appeal No. 01973596
(June 22, 2000).<1> 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 request for reconsideration, complainant has made several
contentions, namely: (1) the Administrative Judge (AJ) unfairly prejudiced
her by denying her discovery requests; (2) the AJ erred in finding that
complainant failed to establish retaliation; and (3) the AJ erred in
failing to find that management attempted to interfere with the EEO
investigative process with regard to complainant's witnesses.
Regarding complainant's contention that she was unfairly prejudiced by
the AJ's denial of discovery, we note that complainant sought numerous
admissions of evidence into the case record regarding the composition
of the agency's infection control program. The AJ required the agency
to file answers to four of complainant's interrogatories, and file
responses to four of fifty-seven document requests. The AJ ruled,
however, that complainant was precluded from raising any factual issues
which had been alluded to in any of complainant's previous discrimination
complaints, which had been decided by another AJ. Finally, the AJ
denied complainant's requests for interrogatories regarding the agency's
infection control program, as she found the information proposed to be
proffered was neither relevant nor material to complainant's allegations
of reprisal. We note that an AJ has wide discretion in the conduct of a
hearing, and after a complete review of the record, we find no prejudicial
error in any discovery ruling by the AJ. See Munoz v. Orr, 200 F.3d 291
(5th Cir. 2000).
Complainant has also contended that the AJ erred in finding that
she failed to establish retaliation regarding her reassignment.
After consideration of the record, we find that although complainant
established a prima facie case of retaliation, the AJ correctly concluded
that the agency articulated legitimate, nondiscriminatory reasons for its
actions, primarily that based on complainant's pattern of unprofessional
and inappropriate behavior, the agency's minimal disciplinary response
of having her transferred out of patient care and into Quality Management
was warranted. In addition, we find that the evidence supports the AJ's
finding that complainant did not establish that it was more likely than
not that the agency's articulated reasons for reassigning complainant
were a pretext to mask unlawful retaliation. Finally, as stated in our
previous decision, the Commission finds that there is no evidence in the
record supporting a finding that the agency's report of investigation in
Case No. 93-3035 was deficient or omitted probative and relevant evidence
in retaliation for complainant's filing subsequent EEO complaints against
the agency, or was due to any discriminatory animus based on her race,
color or age.
Thus, 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. 01973596 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
January 25, 2001
__________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.