0520120457
10-05-2012
Mark Glover, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Mark Glover,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Request No. 0520120457
Appeal No. 0120093752
Hearing No. 520-2009-00025X
Agency No. P20040200
DENIAL
The Agency timely requested reconsideration of the decision in Mark Glover v. Department of Justice, EEOC Appeal No. 0120093752 (April 16, 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).
BACKGROUND
In the appellate decision, Complainant alleged that the Agency discriminated against him on the basis of race (African-American) when, on October 22, 2003, it demoted him from the position of Clinical Director to Staff Physician. At the conclusion of the investigation, Complainant requested a hearing before and EEOC Administrative Judge (AJ). The AJ issued a decision without a hearing finding that Complainant failed to show that the Agency subjected him to discrimination as alleged. The Agency fully adopted the AJ's finding of no discrimination. Complainant appealed to the Commission. The Commission determined that the AJ's finding of no discrimination could not be reached except by resolving significant conflicting evidence in the Agency's favor, which was not appropriate in granting summary judgment. Therefore, the Commission vacated the Agency's final action and remanded the case for a hearing.
REQUEST FOR RECONSIDERATION
In the Agency's request for reconsideration, the Agency contends that the appellate decision involved a clearly erroneous interpretation of law and material facts. Specifically, the Agency maintains that Complainant's complaint should be dismissed as untimely as the demotion was a discrete act and Complainant failed to contact an EEO Counselor within the prescribed 45 day time period. The Agency maintains that it is undisputed that Complainant was demoted on October 22, 2003, but did not seek EEO Counseling until February 6, 2004, some 107 days from the date he received his demotion. The Agency argues that it is not estopped from raising a defense of timeliness on reconsideration as the Agency raised this defense in the Final Agency Decision. Additionally, the Agency also requests that Complainant's harassment claim be dismissed as untimely.
In response, Complainant contends that his EEO Counselor contact was timely. Complainant indicates that he opposes the request for reconsideration for several reasons including: he timely contacted an EEO Counselor within 45-days of the date he first suspected discrimination, the date of initial contact referenced in the Report of Investigation is not accurate, and even if it was, contact was still timely, and finally that the Agency failed to provide Complainant with any notice of the 45-day deadline during his employment and attempted to prevent him from timely contacting a counselor.
ANALYSIS AND FINDINGS
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. Specifically, we find that the Agency failed to show that the appellate decision, which dealt with whether the AJ erred in issuing a decision without a hearing not the timeliness of Complainant's EEO contact, 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. Accordingly, the decision in EEOC Appeal No. 0120093752 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.1
ORDER
The Agency shall submit to the Hearings Unit of the EEOC's New York District Office the request for a hearing, as well as the complaint file, within thirty (30) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit of the New York District Office. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
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 (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
____10/5/12______________
Date
1 We reject the Agency's argument that it is not estopped from raising the timeliness of Complainant's EEO counselor contact. The Agency's position is based on the fact that it issued a FAD addressing this matter in April 2008, which gave Complainant appeal rights to the MSPB. Subsequently, the Agency withdrew this FAD on February 24, 2009. The Agency's August 5, 2009 final order adopted the AJ's finding of no discrimination. The Agency cites the decision in Oaxaca v. Roscoe, 641 F.2d 386 (5th Cir. 1981) for the proposition that an Agency does not waive objections to timeliness by acceptance and investigation of a complaint as long as it does not make a finding with respect to discrimination. The Agency's argument fails because it ignores the fact that it withdrew its FAD, did not raise timeliness in its motion for a decision without a hearing to the AJ, and issued a final order adopting the AJ's finding of no discrimination. Therefore, based upon the Agency's own actions the Commission declines to entertain the Agency's argument that Complainant's complaint should be dismissed for untimely EEO Counselor contact.
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05-2012-0457
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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