0520110665
02-22-2012
Benjamin G. Bacaoco, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Benjamin G. Bacaoco,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Request No. 0520110665
Appeal No. 0120101041
Hearing No. 480-2009-00499X
Agency No. 6Z1M08014F091
DENIAL
Complainant timely requested reconsideration of the decision in Benjamin
G. Bacaoco v. Department of the Air Force, EEOC Appeal No. 0120101041
(August 12, 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).
The previous decision affirmed the Agency’s final decision in which
it found that Complainant had not been discriminated against on the
bases of his sex and in reprisal for prior protected EEO activity when
he was verbally harassed and moved to a different building, was issued a
“no contact” order and not allowed to attend weekly staff meetings,
and was given a two-day suspension. The previous decision also affirmed
an Administrative Judge’s (AJ) dismissal of Complainant’s hearing
request on the basis that the request had been made past the 30-day time
frame in which to request a hearing. We found that Complainant had not
timely served the Agency or the EEOC District Office with his hearing
request, and had not presented good cause as to why the time limits should
be extended. The decision affirmed that Complainant had not shown that
he had been subjected to discrimination or harassment when the Agency
took actions to separate and discipline Complainant and a co-worker who
were involved in an argument, finding that he had not shown that the
Agency’s actions were based on his sex or prior EEO activity.
Complainant filed this request for reconsideration. He argued that the
decision to affirm the dismissal of his hearing request on the basis that
it was untimely made was in error, and that it is within the power of the
Commission to set aside the dismissal ruling because the dismissal was
due to the attorney’s admitted mistake. Complainant also argued that
the previous decision came to the wrong conclusion when it determined
that Complainant had not shown that he was discriminated against.
He reiterated his belief that testimony should be heard by an AJ, and
credibility determinations made, and that the evidence established that
he had been subjected to retaliation.
The Agency filed a statement in opposition to Complainant’s request
for reconsideration. It argued that Complainant had not shown that
the previous decision was clearly erroneous, and that his request for
reconsideration merely repeated arguments made in support of his initial
appeal. The Agency also argued that the previous decision is supported
by prior Commission case precedent and that there is no basis to set
aside the dismissal of the hearing request based on Complainant’s
attorney’s admitted mistake. It urged the Commission to deny the
request for reconsideration.
We find that the previous decision did not err when it affirmed the
AJ’s dismissal of Complainant’s hearing request, and found that
Complainant had not shown good cause to extend the time limits. Although
Complainant’s attorney argued that Complainant should not be penalized
for the error made by his office in not timely filing the hearing request,
we note that a complainant is responsible for proceeding with the
processing of a complaint whether or not the complainant has designated
a representative. See 29 C.F.R. § 1614.605(e). Additionally,
Complainant’s counsel argued that the Federal Rules of Civil Procedure
(FRCP) in Rule 60(b) provide for the set aside of a dismissal of a case
based on an attorney’s admitted mistake. We have long stated that
while we may look to the Federal Rules as guidance, the federal sector EEO
administrative process is not bound by the FRCP. The regulation found at
29 C.F.R. § 1614.108(f) specifies that a complainant has thirty days
from the date of receipt of the investigative file to request a hearing
with an AJ. The previous decision did not find that Complainant had
presented good cause as to why the time limit should be extended, and we
find that Complainant has not shown that decision to be clearly erroneous.
We also find that the previous decision correctly analyzed the merits of
Complainant’s claim that he was subjected to discrimination based on
his sex and in reprisal for prior EEO activity and correctly concluded
that Complainant had not established that discrimination occurred,
and Complainant has not shown that determination to be clearly erroneous.
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. 0120101041 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, 794I. 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
February 22, 2012
Date
2
0520110665
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110665