0520120558
12-12-2012
Lawrence E. Kidd, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Lawrence E. Kidd,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520120558
Appeal No. 0120121751
Agency No. 1100174001
DENIAL
Complainant timely requested reconsideration of the decision in Lawrence E. Kidd v. Department of the Navy, EEOC Appeal No. 0120121751 (June 28, 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).
In the appellate decision, Complainant alleged he was discriminated against based on his age, race, and sex when he was removed from the Agency. Complainant filed an EEO complaint alleging he was discriminated against when he was removed. Complainant was informed that he could appeal the decision directly to the Merit Systems Protection Board (MSPB) or file a complaint, but not both. Complainant filed an appeal with the MSPB and subsequently filed a complaint of discrimination. The Agency held the EEO complaint in abeyance until the MSPB issued a determination. The MSPB ultimately determined, after a hearing, that Complainant was not entitled to relief as alleged under Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). After the initial decision was issued, the Agency dismissed Complainant's EEO complaint finding that Complainant filed the instant formal complaint only after filing an appeal with the MSPB on the same matter. Complainant appealed that decision to the Commission.
In Kidd v. Department of the Navy, EEOC Appeal No. 0120121751 (June 28, 2012), the Commission upheld the Agency's dismissal decision. In so finding, the Commission determined that Complainant could have raised an allegation of discrimination before the MSPB but failed to do so. Complainant filed a request for reconsideration.
In the request for reconsideration, Complainant reiterates arguments previously raised on appeal. Specifically, that the MSPB does not have jurisdiction over discrimination claims raised under USERRA or Veterans Employment Opportunities Act (VEOA). We note that 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), 9-17 (November 9, 1999). 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. Here, we find no evidence that Complainant has met the criteria for reconsideration. To the extent that Complainant argues that the MSPB does not have jurisdiction over the discrimination claims under USERRA or VEOA, the appellate decision merely provides that Complainant could have raised a Title VII allegation of discrimination at the MSPB at the same time that he raised the other allegations. Accordingly, Complainant is precluded from raising the claim before both the MSPB and the EEOC.
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. 0120121751 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
__12/12/12________________
Date
2
0520120558
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120558