05A30771_r
12-09-2003
Sharon P. Pindle, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Sharon P. Pindle v. Department of the Army
05A30771
December 9, 2003
.
Sharon P. Pindle,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Request No. 05a30771
Appeal No. 01A25024
Agency Nos. BXHMFO-97-12H1030
BXHMFO-98-03I0390
Hearing No. 100-A2-7172X
DENIAL OF REQUEST FOR RECONSIDERATION
Sharon P. Pindle (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Sharon P. Pindle v. Department of the Army, EEOC Appeal
No. 01A25024 (August 27, 2002). 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 the previous decision, the Commission affirmed an agency final order
which adopted the summary judgment decision of an EEOC Administrative
Judge (AJ) finding no discrimination regarding complainant's claims
of race and sex discrimination, and reprisal for engaging in prior
EEO activity. Complainant's claims concerned her non-selection for a
Traffic Management Specialist position and an evaluation on a performance
evaluation, as well as a claim of supervisor harassment resulting in a
hostile work environment.
In her request for reconsideration, complainant lists the following as
sources of error in the Commission's previous decision:
False information on comments made by witnesses was reported;
Some of my witnesses were never interviewed, but statements were
submitted for those witnesses (but rejected by the AJ because they were
not properly authenticated).
I was given the wrong time for the Pre-hearing interview (conference),
even though I tried on several occasions to get in touch with the AJ
to verify the time and phone number. The AJ never returned my call
to confirm.
The AJ faxed information to me to a fax number that I no longer had
access to nor mailed certified mail to me.
Complainant also submits a signed statement from a female agency
employee commenting on the conduct of the supervisor identified as the
discriminating agency official in her complaints, as well as copies of
e-mail correspondence from another female agency employee, reflecting
her difficulties with this same supervisor. Complainant also submits
copies of correspondence with the District Director at the Washington
Field Office demonstrating that she twice made complaints against the
AJ during the hearing process, to include those raised in items 1,
2, 3 and 4 above, and requested that the AJ be removed from the case.
Additionally, complainant submits copies of e-mail correspondence with
the agency concerning a time change for the pre-hearing conference.
In response, as to item 1, the agency asserts that complainant presents
no evidence to substantiate that witnesses provided false statements,
noting that numerous witnesses provided corroborated testimony which
failed to support complainant's claims. Regarding item 2, the agency
indicated that the investigator attempted to contact two of complainant's
witnesses, but to no avail. Further, the agency argues that the AJ
properly excluded certain witness statements submitted by complainant
during the hearing not only because they were unsigned, but also because
they were submitted approximately one month late. The agency also notes
that in her request for reconsideration, complainant now submits a signed
statement, but argues that she could have obtained and submitted this
evidence during the hearing, or on appeal, such that it may not now
properly be considered by the Commission.
As to item 3, the agency argues that complainant's claim that she
was unaware of the time change is disingenuous and possibly spurious.
Specifically, the agency notes that complainant's knowledge of this
change is demonstrated in her e-mail correspondence with the agency's
representative regarding this change, which reflects that the agency
made a request for this change, but that the AJ only changed the time of
the conference, but not the date. Additionally, the agency argues that
complainant's knowledge is also established in her written complaint to
the District Director, which is dated the same day that the pre-hearing
conference was scheduled, asking that the AJ be removed from the case.
The agency also noted that when complainant failed to appear for the
conference, the AJ made multiple unsuccessful attempts to contact her
on that day, but that complainant made no attempt to contact the AJ
or agency to re-schedule the conference. The agency noted that the
District Director denied complainant's request to remove the AJ.
Regarding item 4, the agency argues that complainant's mailing address
was of record all along, and remains unchanged, noting that it is the
complainant who bears the responsibility to provide current and accurate
contact information.
We find that complainant's contentions in her request for reconsideration
primarily concern the same claims of AJ misconduct and error she
raised during the hearing process, and which were addressed by the
District Director. We note that an AJ has broad discretion in the
conduct of a hearing, including matters such as discovery orders,
scheduling, admission/exclusion of evidence, and witness selection.
See 29 C.F.R. � 1614.109(c). Based on our review of the record,
notwithstanding complainant's contentions to the contrary, we find no
persuasive evidence of harmful error or that the AJ abused her discretion
in the processing of this case.
Additionally, we find that to support her request for reconsideration,
complainant submits a witness statement and copies of e-mail
correspondence from two female employees previously supervised by the
same supervisor identified as the discriminating agency official in
her complaints. We find that these documents, which were not part of
the appellate record, constitute new and material evidence to support
her request for reconsideration. However, the reconsideration criteria,
as set forth above, does not include the submission of new and material
evidence as a basis for reconsidering a previous Commission decision.
See 29 C.F.R. 1614.405 (b) et seq; Murphy v. Department of Veterans
Affairs, EEOC Request No.05A10724 (August 8, 2001). Nonetheless, even
if we were to presently consider this evidence, we do not find that it
demonstrates error in the previous decision. While this evidence may
show that the supervisor at issue lacks interpersonal management skills,
and favors those with a military background, both male and female,
we find that it is not probative in demonstrating race or sex-based
discriminatory animus or retaliation regarding the claims raised in the
instant complaints. Moreover, we concur with the agency that complainant
could have obtained and submitted this evidence during the hearing,
or on appeal, and yet failed to do so.
After a review of 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. 01A25024 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
December 9, 2003
__________________
Date