05a00721
09-06-2000
Sherry J. Oshiver, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Sherry J. Oshiver v. Department of the Interior
05A00721
09-06-00
.
Sherry J. Oshiver,
Complainant,
v.
Bruce Babbitt,
Secretary,
Department of the Interior,
Agency.
Request No. 05A00721
Appeal No. 01995714
Agency No. WGS-98-0111
DECISION
On April 25, 2000, Sherry J. Oshiver (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission) to
reconsider the decision in Sherry J. Oshiver v. Bruce Babbitt, Secretary,
Department of the Interior, EEOC Appeal No. 01995714 (March 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. 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 affirmed
the agency's decision finding that it did not discriminate against
complainant on the basis of sex and in reprisal for prior EEO activity.
Complainant filed a formal complaint on March 27, 1998. Following an
investigation, she requested a hearing before an EEOC Administrative
Judge (AJ). The AJ found that complainant failed to cooperate with
the agency during the discovery process when she failed to appear for
several scheduled depositions and returned the matter to the agency
for a final agency decision (FAD) without a hearing. The agency issued
its FAD on June 11, 1999, finding no discrimination, and the previous
decision affirmed the FAD.
Complainant alleged discrimination with regard to an award, her work
schedule, work assignments, and credit hours. At the time of her
complaint, complainant worked as a Congressional Liaison and Legislative
Specialist, GS-14, in the agency's Office of Congressional Liaison.
The FAD found that, in response to her claims, the agency provided
legitimate, nondiscriminatory reasons for its actions, which complainant
did not show were pretextual.
Complainant has filed a request to reconsider the previous decision.
In order to merit the reconsideration of a prior Commission decision,
the requesting party must submit written argument that tends to establish
that at least one of the criteria of 29 C.F.R. � 1614.405(b) is met.
The Commission's scope of review on a request for reconsideration is
narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989). An RTR is not merely a form of a second appeal.
Regensberg v. USPS, EEOC Request No. 05900850 (September 7, 1990).
In her request, complainant merely repeated, without explication or
further argument, the standards for reconsideration by the Commission.
This is insufficient to support reconsideration by the Commission.
29 C.F.R. � 1614.405(b).
Based on our review of this matter, we find that the AJ properly
returned the matter to the agency for a decision without a hearing.
See 29 C.F.R. � 1614.109(b); 29 C.F.R. � 1614.107(a)(7). In addition,
we find that the agency's FAD accurately stated the facts and correctly
applied the pertinent principles of law. We therefore affirm the previous
decision finding that the agency did not discriminate against complainant
based on sex and reprisal.
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. 01995714 (March 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 COMPLAINANT'S 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
___09-06-00_______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
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.