0520110623
12-14-2011
Dennis McCray, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Dennis McCray,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Request No. 0520110623
Appeal No. 0120111805
Agency No. P-2006-0166
DENIAL
Complainant timely requested reconsideration of the decision in Dennis
McCray v. Department of Justice, EEOC Appeal No. 0120111805 (August
4, 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.
ISSUE PRESENTED
The issue presented is whether Complainant met the criteria for
reconsideration by demonstrating that the appellate 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.
BACKGROUND
In the underlying case, Complainant alleged that the Agency violated
the terms of an April 6, 2009 settlement agreement when it failed
to provide him with Special Investigator Supervisor (SIS) training.
The settlement agreement stated that the Agency would promote Complainant
to a GS-9 lieutenant position effective May 1, 2007 and provide him
“all such training as is customarily provided to all newly promoted
GS-9 lieutenants.” In addition, the settlement agreement stated that
the Agency would provide Complainant the training within 12 months,
but did not specify particular training courses.
The appellate decision found that the Agency complied with the terms of
the settlement agreement. The appellate decision noted the following:
(a) from 2005 to spring of 2009, the Agency included SIS training in new
lieutenant training; (b) in May 2009, the Agency decided to no longer
include SIS training in new lieutenant training; and (c) in October 2009,
when Complainant was trained, the Agency did not routinely include SIS
training in new lieutenant training. Although Complainant contended
that the Agency was contractually bound to provide SIS training because
customary training in April 2009 included SIS training, the appellate
decision found that the Agency substantially performed its obligations.
Specifically, the appellate decision determined that Complainant’s
October 2009 training consisted of training that was customary at that
time. The appellate decision construed the language of the settlement
agreement to require the Agency to provide the training necessary for
a newly promoted GS-9 lieutenant to perform the duties of that position
and found that the Agency provided evidence that all necessary training
was provided to Complainant.
ARGUMENTS ON RECONSIDERATION
First, Complainant argued that the Agency was obligated to provide him
with SIS training because new lieutenant training included SIS training
on May 1, 2007 (the effective date of his promotion) and on April 6,
2009 (the date of the settlement agreement). Second, Complainant
argued that the Agency deceived him because it failed to disclose the
prospective change in training during settlement negotiations. Third,
Complainant argued that the Agency required SIS training for lieutenants
who are assigned to SIS duty, and he was assigned to SIS duty on several
occasions in 2010 and 2011.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant’s request fails to demonstrate
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. We note that Complainant raised similar arguments on appeal
and we remind Complainant that a request for reconsideration is not a
second appeal to the Commission. See EEO MD-110, at Ch. 9, § VII.A.
Regarding Complainant’s first argument, the appellate decision
determined that the relevant new lieutenant training was the training that
was customary in October 2009, when Complainant received the training.
Although Complainant disagrees with the relevant timeframe, we find that
he has not shown that the appellate decision clearly erred in making such
a determination. Moreover, we note that Complainant’s October 2009
new lieutenant training occurred within the 12 month period specified in
the April 6, 2009 settlement agreement. Regarding Complainant’s second
argument, we find that Complainant failed to show that the Agency acted
in bad faith or intentionally misled him during settlement negotiations.
The record reflects that the Agency did not approve the changes to
the new lieutenant training until May 2009. Regarding Complainant’s
third argument, we find that it is beyond the scope of the settlement
agreement. Although the Agency may require SIS training for lieutenants
who are assigned to SIS duty, the settlement agreement pertains to
“all such training as is customarily provided to all newly promoted
GS-9 lieutenants.” [emphasis added]. As discussed above, training
customarily provided to all newly promoted GS-9 lieutenants in October
2009, when Complainant received training, did not include SIS training.
Finally, we emphasize that the settlement agreement language does not
specifically mention SIS training. If Complainant wanted the Agency to
provide SIS training, he had the opportunity to include such language
in the settlement agreement itself.
CONCLUSION
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. 0120111805 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
___12/14/11_______________
Date
2
0520110623
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520110623