0520120410
11-01-2012
Edward J. Simpkins, Complainant, v. Hilda L. Solis, Secretary, Department of Labor, Agency.
Edward J. Simpkins,
Complainant,
v.
Hilda L. Solis,
Secretary,
Department of Labor,
Agency.
Request No. 0520120410
Appeal No. 0120110472
Hearing No. 570-2008-00840X
Agency No. 08-11-021 and 09-11-045
DENIAL
Complainant timely requested reconsideration of the decision in Edward J. Simpkins v. Department of Labor, EEOC Appeal No. 0120110472 (April 25, 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).
The previous decision affirmed the Agency's final order adopting the decision of an EEOC Administrative Judge (AJ). The AJ issued a decision without a hearing finding that Complainant had not established that the Agency discriminated against him on the bases of race (African-American), sex (male), age (46 years old), and in reprisal for prior protected EEO activity when he was assigned more customer inquiries than his co-workers. The previous decision noted that it was undisputed that Complainant was almost exclusively assigned fewer inquiries than all of his comparators, with the exception of a one female employee from 2006 to 2007. The Commission further found that the Agency's failure to include disability as a basis in its final decision was harmless error because Complainant did not request a reasonable accommodation within the meaning of the Rehabilitation Act.
In his request for reconsideration, Complainant reiterates his assertion that the final decision improperly failed to include disability as a basis for his complaint. Complainant also reiterates his claim that the Agency assigned him "an uneven and unequal amount of work." Additionally, Complainant contends that the he never had an opportunity to litigate his case because the Agency and AJ violated his right to due process.
We note 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. Specifically, Complainant has not shown that the previous decision erred in finding that Complainant failed to provide any evidence from which it could be reasonably concluded that the Agency's alleged actions were motivated by his race, sex, age, disability, or previous EEO activity. Further, the record reveals that the AJ gave Complainant a fair and proper opportunity to litigate his case.
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. 0120110472 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
November 1, 2012
Date
2
0520120410
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120410