Maria R. Dupras, Complainant, v. Gary Locke, Secretary, Department of Commerce (Bureau of the Census), Agency. Request No. 0520110648 Appeal No. 0120112052 Agency No. 106300892D DENIAL Complainant timely requested reconsideration of the decision in Maria R. Dupras v. Department of Commerce, EEOC Appeal No. 0120112052 (July 22, 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 dismissal of some of Complainant's claims, and found that in her remaining claims Complainant failed to establish that she was subjected to harassment and discrimination as alleged. We found that the Agency articulated legitimate, nondiscriminatory reasons for terminating Complainant's employment, and Complainant failed to establish by a preponderance of the evidence that the Agency's reasons were pretext for discrimination. We note that we erred in our previous decision when we stated, "Regarding the basis of sexual orientation, this is not covered by EEOC regulations or any law enforced by the EEOC and thus is dismissed for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1)." This statement is not correct, as we have found that lesbian, gay, bisexual, and transgender individuals may bring claims of discrimination under Title VII in certain circumstances, including sex stereotyping. See Macy v. Dep't of Justice, EEOC Appeal No. 0120120821 (April 20, 2012) citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Baker v. Social Security Admin., EEOC Appeal No. 0120110008 (January 11, 2013); Veretto v. U.S. Postal Service, EEOC Appeal No. 0120110873 (July 1, 2011). Here, the record is clear that Complainant alleged that she was subjected to stereotyping on the bases of sex because of her sexual orientation. Such an allegation is sufficient to state a claim based on sex discrimination under Title VII. However, we find that this error of law is not material as it does not affect the outcome of Complainant's appeal. Here, the Agency investigated Complainant's claim of stereotyping on the bases of sex because of her sexual orientation, and addressed the claim on the merits under Title VII in its final decision. After a review of the entire record, we agree with our previous decision that Complainant failed to establish that she was subjected to harassment and discrimination as alleged. Additionally, the Agency articulated legitimate, nondiscriminatory reasons for terminating Complainant's employment, and Complainant failed to establish by a preponderance of the evidence that the Agency's reasons were pretext for discrimination. In her request for reconsideration, Complainant raises the same contentions that she raised on appeal. We remind Complainant that a "request for reconsideration is not a second appeal to the Commission." EEO MD-110, at 9-17. A reconsideration request is an opportunity to demonstrate that the previous decision (1) 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, we find no evidence that Complainant has met the criteria for reconsideration. 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. 0120112052 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 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 March 15, 2013 __________________ Date 2 0520110648 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0520110648