Sherry J. Oshiver, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionSep 6, 2000
05a00721 (E.E.O.C. Sep. 6, 2000)

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.