0520120246
11-30-2012
Marc A. Robinson, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Marc A. Robinson,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Request No. 0520120246
Appeal No. 0120100683
Hearing No. 520-2008-00048X
Agency No. HS-05-TSA-002242
DENIAL
Complainant timely requested reconsideration of the decision in Marc A. Robinson v. Department of Homeland Security, EEOC Appeal No. 0120100683 (December 14, 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. See 29 C.F.R. � 1614.405(b).
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
Complainant filed a June 25, 2005, EEO complaint alleging that the Agency discriminated against him on the basis of disability when, on February 24, 2005, the Agency terminated his employment after a Fitness for Duty examination concluded that he was unfit for duty. After Complainant requested a hearing before an EEOC Administrative Judge (AJ), the AJ issued an October 5, 2009, decision granting the Agency's Motion to Dismiss for Untimely Filing and Motion for a Decision without a Hearing. The AJ found that Complainant had not raised the allegation of discrimination in a timely manner and had not shown that the Agency discriminated against him on the basis of disability when it terminated his employment. The Agency issued a final order adopting the AJ's findings, and Complainant appealed to this Commission.
In our previous decision, we affirmed the finding that Complainant failed to show that he timely contacted an EEO Counselor regarding the matters in this case. We concluded that, although Complainant contacted an EEO Counselor on March 9, 2005, nothing in the record indicated that Complainant intended to begin the EEO process at that time. In that regard, we noted that a March 9, 2005, "Contact Sheet" stated that the EEO bases at issue were "none at this time" and that Complainant "will not discuss" his reasons for contacting the EEO office. We also noted that the Agency's EEO Office sent Complainant an information packet on March 10, 2009, that the packet informed Complainant of the proper time frames, that Complainant did not make any further contact with the EEO office until he faxed documents to the EEO Counselor on April 26, 2005, and that he provided no explanation for his delay in submitting the forms. Accordingly, we found that Complainant failed to establish that he timely contacted an EEO Counselor to initiate the EEO process. Having affirmed the finding that Complainant did not initiate the EEO process in a timely manner, we concluded that it was not necessary to determine whether the AJ correctly found that the Agency did not discriminate against Complainant.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant argues that he contacted an EEO Counselor in a timely manner. He asserts that he raised allegations of sexual harassment and race, disability, and reprisal discrimination during a March 9, 2005, telephone call with the EEO Counselor. He also asserts that the Counselor falsified the Contact Sheet by stating that Complainant did not raise any EEO bases and would not discuss matters with the Counselor.
The Agency did not file a reply to Complainant's request.
DETERMINATION
We note that 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.
Complainant failed to show that the appellate decision clearly erred in affirming the determination that he did not initiate EEO counseling in a timely manner. As we noted on appeal, nothing in the record indicates that Complainant intended to begin the EEO process on March 9, 2005. Further, the record does not support Complainant's assertion that the EEO Counselor falsified the Contact Sheet. Complainant's mere assertion, raised for the first time in this request, is insufficient to establish that the Contact Sheet contained false information or that our previous decision erroneously concluded that Complainant failed to initiate the EEO process in a timely manner.
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. 0120100683 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 30, 2012
Date
2
0520120246
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120246