0520120529
12-11-2012
John M. Bradley, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
John M. Bradley,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520120529
Appeal No. 0120121768
Agency No. 12-65923-00809
DENIAL
The Agency timely requested reconsideration of the decision in John M. Bradley v. Department of the Navy, EEOC Appeal No. 0120121768 (June 28, 2012).1 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).
ISSUE PRESENTED
The issue presented is whether the Agency 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 filed an EEO complaint alleging that the Agency discriminated against him on the basis of sex (male) when, effective October 14, 2011, it removed him from his position of Sheet Metal Mechanic (Aircraft), WG-3806-10.
The Agency issued a final decision dismissing Complainant's complaint pursuant to
29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Specifically, the Agency found that Complainant's January 18, 2012 EEO Counselor contact occurred more than 45 days after the alleged discriminatory event on October 14, 2011. In addition, the Agency noted that Complainant had raised the matter in a November 1, 2011 appeal to the Merit Systems Protection Board (MSPB), but that an MSPB Administrative Judge had dismissed the appeal for lack of jurisdiction.
The appellate decision reversed the Agency's dismissal and remanded Complainant's complaint for further processing. Citing 29 C.F.R. � 1614.302(b) and noting the MSPB's dismissal for jurisdictional reasons, the appellate decision deemed the date Complainant filed his MSPB appeal, November 1, 2011, to be the date of initial EEO Counselor contact. The appellate decision noted that the record did not contain copies of Complainant's MSPB appeal or the MSPB decision.
ARGUMENTS ON RECONSIDERATION
In its request for reconsideration, the Agency argued that the appellate decision calculated Complainant's timeliness using an incorrect date - November 1, 2011. Specifically, the Agency asserted that, because Complainant's MSPB appeal did not contain an allegation of discrimination, the correct date was when Complainant actually contacted an EEO Counselor - January 18, 2012.
ANALYSIS AND FINDINGS
Upon review, we find that the Agency's request for reconsideration does not 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. Specifically, the Agency failed to show that the appellate decision clearly erred in finding, based on the record before it, that Complainant's EEO Counselor contact occurred on November 1, 2011, the date he filed his MSPB appeal.
The complaint file that the Agency submitted to the Commission did not contain copies of Complainant's MSPB appeal or the MSPB AJ's decision dismissing the appeal for lack of jurisdiction. In fact, the only references in the complaint file to Complainant's MSPB appeal were: (1) the Agency's final decision dismissing Complainant's complaint; and (2) the EEO Counselor's Report summarizing the initial interview with Complainant. There was no evidence in the complaint file that Complainant's MSPB appeal was a non-mixed matter.
The Agency first submitted copies of the MSPB appeal and the MSPB AJ's decision in its June 26, 2012 brief in opposition to Complainant's appeal to the Commission. The Agency's brief, submitted more than 60 days after its April 2, 2012 receipt2 of Complainant's appeal to the Commission, was untimely filed and was not considered. See 29 C.F.R. � 1614.403(f).
At no time prior to its untimely June 26, 2012 brief did the Agency make the Commission aware that Complainant's November 1, 2011 MSPB appeal was a non-mixed matter. The Agency had an opportunity to do so by including pertinent documentation in the complaint file or as part of a timely brief - but did not. We find it reasonable for the appellate decision to have concluded, based on the complaint file, that Complainant's MSPB appeal was a mixed case appeal and to have deemed November 1, 2011 as the initial EEO Counselor contact date.
CONCLUSION
After reviewing the previous decision and the entire record, the Commission finds that the requests fail 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. 0120121768 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
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
__12/11/12________________
Date
1 Complainant filed a request for reconsideration but subsequently, in a letter dated August 17, 2012, stated that he wished to withdraw his request. Accordingly, this decision will only address the Agency's request for reconsideration.
2 The complaint file contains an April 2, 2012 e-Notice to the Agency that Complainant filed an appeal, along with a copy of the appeal.
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0520120529
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520120529