0520120298
12-21-2012
Carl Jones, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Carl Jones,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520120298
Appeal No. 0120112512
Agency No. DON-11-67400-00404
DENIAL
Complainant timely requested reconsideration of the decision in Carl Jones v. Department of the Navy, EEOC Appeal No. 0120112512 (Jan. 13, 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).
Our previous decision affirmed the Agency's dismissal of Complainant's formal EEO complaint for failure to state a claim. Complainant alleged that the Agency discriminated against him on the basis of race (African American). He asserted that a Heavy Motor Vehicle Operator position, which the Agency advertised as a non-supervisory position, involved supervisory foreman duties and that he would have applied for the position if the vacancy announcement had disclosed the position's supervisory duties. Our previous decision noted that Complainant claimed that the Agency intentionally hid the supervisory duties to exclude him and other African-American employees from supervisory positions. The decision also noted that, on appeal, Complainant alleged that the Agency misrepresented his claim and asserted that the Agency's hiring practices and manipulation of the hiring process denied him the opportunity to move into a leadership or supervisory position. In affirming the dismissal of the complaint, our previous decision found that there was no evidence that the position was a supervisory position or that Complainant was denied the opportunity to apply for the position. Accordingly, the decision concluded that the complaint failed to state a claim because Complainant failed to show that he suffered harm or loss with respect to a term, condition, or privilege of employment.
In his request for reconsideration, Complainant asserts that he "never made the statement that he was 'denied the opportunity to apply for a supervisory position.'" He reiterates his assertions that the Agency mischaracterized his claim, that the Heavy Motor Vehicle Operator position was actually a foreman position, and that the Agency discriminates against African-American employees. In response, the Agency argues that the previous decision correctly determined that the complaint failed to state a claim.
We remind Complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision 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. Complainant has not done so here. Instead, he has reiterated arguments raised and considered on appeal. Complainant has not demonstrated that the previous decision clearly erred in finding that he failed to show that he suffered harm or loss with respect to a term, condition, or privilege of employment.
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. 0120112512 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
December 21, 2012
Date
2
0520120298
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120298