0520110600
11-04-2011
Shelley Jo Wynia, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Shelley Jo Wynia,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520110600
Appeal No. 0120102950
Agency No. 2003-0579-2009104321
DENIAL
Complainant timely requested reconsideration of the decision in Shelley
Jo Wynia v. Department of Veterans Affairs, EEOC Appeal No. 0120102950
(June 28, 2011). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to 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 our previous decision, we affirmed the final Agency decision insofar
as it found that Complainant had not established that the Agency
discriminated against her on the basis of age when she was terminated
from employment during a temporary detail. We reversed the Agency’s
final decision with regard to its dismissal of Complainant’s claim
that the Agency failed to promote her pursuant to a specified vacancy
announcement, noting that while Complainant had proffered evidence that
she had applied for the position in question, the Agency had offered no
evidence to support its stated reason for dismissing this claim, that
is, that Complainant had not applied for the position. We remanded the
claim regarding the non-promotion for further processing.
On request for reconsideration, Complainant argues that the previous
decision erred with regard to material fact. Complainant details what she
asserts were falsehoods, omissions, and inconsistencies in the Agency’s
justification for her removal. The Agency did not file a reply.
We find that Complainant’s request does not meet the criteria for
reconsideration. We note that a request for reconsideration is not
a second form of appeal. E.g., Lopez v. Dep’t of Agriculture, EEOC
Request No. 0520070736 (Aug. 20, 2007); EEO Management Directive for
Part 1614 (EEO MD-110), Chap. 9, §VII.A. (Nov. 9, 1999). Rather, a
reconsideration request is an opportunity to demonstrate that the previous
decision involved a clearly erroneous interpretation of material fact or
law; or (2) will have a substantial impact on the policies, practices,
or operations of the Agency. Here, complainant argues the merits and
credibility of the Agency’s explanation for her termination. We note,
however, that Complainant did not avail herself of the opportunity to
request a hearing before an EEO Administrative Judge, who would have
been in a position to address matters of credibility.
After reviewing 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. 0120102950 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The Agency shall issue
to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the Complainant requests a
final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 4, 2011
Date
2
0520110600
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013