0520120290
05-31-2012
_______________, Complainant, v. Mary L. Schapiro, Chairman, Securities and Exchange Commission, Agency.
_______________,
Complainant,
v.
Mary L. Schapiro,
Chairman,
Securities and Exchange Commission,
Agency.
Request No. 0520120290
Appeal No. 0120110754
Agency No. 00019-2010
DENIAL
Complainant timely requested reconsideration of the decision in _______________ v. Securities & Exchange Commission, EEOC Appeal No. 0120110754 (January 5, 2012). 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 the appellate decision, Complainant alleged that based on his race/color (Black), and reprisal for prior protected EEO activity (management's assumption that he sent an anonymous email to upper management regarding lack of equal opportunities for Black employees) when on April 8, 2010, it proposed his suspension for 30 calendar days when the Agency suspected that Complainant had attempted to access internet websites classified by the Agency's internet filter as pornography. Complainant responded to the proposed suspension and it was decided that a Counseling Memorandum would be issued instead of a suspension as it was found that Complainant did not intentionally attempt to access pornography and his hard drive did not have pornographic images on it. The Counseling Memorandum was issued however because the hard drive did contain sexually suggestive images that were not appropriate in the workplace.
Thereafter, the Agency dismissed Complainant's complaint on the grounds that it alleged a proposed action. The previous decision dismissed Complainant's reprisal claim because it found that an anonymous email opposing alleged discrimination did not constitute EEO activity protected by an EEO statute enforced by the EEOC. Further, the previous decision found that it did not have authority to address Complainant's claim that the Agency violated CBA policies. Finally, the previous decision found that the Agency properly dismissed the claim concerning the proposed suspension because this matter was about a proposal to take a personnel action. The previous decision also found that Complainant's receipt of the Counseling Memorandum failed to state a claim because it was not disciplinary in nature and was not included in his Official Personnel File.
REQUEST FOR RECONSIDERATION
In Complainant's request, he maintains that employees not of his protected bases were treated more favorably than he was when discipline was proposed. He asserts that white employees were interviewed before discipline was proposed and therefore they had the opportunity to decide what type of action they would take. Complainant also maintains that the Commission's decision is flawed because it focuses on the receipt of the Counseling Memorandum instead of the disparate treatment regarding discipline. He contends that he was denied the terms and conditions of employment to which he was entitled. Complainant asserts that he is entitled to discovery in order to develop his case as to whether he was singled out for the proposed discipline and whether non-black employees were treated more favorably with respect to discipline. He also contends that his supervisor cannot be trusted.
In response, the Agency argues that Complainant's request fails to meet the requirements of a request for reconsideration. Further, the Agency asserts that Complainant continues to raise arguments previously raised or abandoned in his appeal.
ANALYSIS AND FINDINGS
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. Specifically, we find that Complainant failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. The record shows that Complainant was never suspended. Therefore, a personnel action was never taken against him. The Commission has long held that a proposal to take a personnel action fails to state a claim and should be dismissed. See 29 C.F.R � 1614.107(a)(5).
Further, the record shows that the proposal was mitigated to a Counseling Memorandum which was not considered discipline and which was not included as part of his personnel file. While Complainant maintains that two other comparators were presented with the evidence against them and therefore they had the opportunity to decide what to do, the evidence shows that Complainant was fully aware that he was being charged with using his computer in an inappropriate manner and he too was given the opportunity to respond to the charge of using his work computer inappropriately. Accordingly, Complainant has not shown that similarly situated employees not of his protected bases were treated more favorably. We also find that Complainant's argument that he should be allowed discovery to gather information to prove his case and that his supervisor was not trustworthy is immaterial to the procedural finding in this case. Accordingly, the decision in EEOC Appeal No. 0120110754 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
___5/31/12_______________
Date
2
0520120290
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120290