0520110694
02-24-2012
Robert A. Scrivner, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Robert A. Scrivner,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Request No. 0520110694
Appeal No. 0120112099
Agency No. ARMCAAP09OCT04829
DENIAL
Complainant timely requested reconsideration of the decision in Robert
A. Scrivner v. Department of the Army, EEOC Appeal No. 0120112099 (July
26, 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).
In our previous decision, the Commission found that the Agency complied
with a November 12, 2010, settlement agreement. The settlement agreement
provided, in pertinent part:
(2) Complainant also agrees to provide the Agency with a medical release
signed by a licensed physician which specifically describes his physical
work limitations/restrictions, if any.
(3) Upon receipt of the medical release, the Agency will evaluate the
restrictions and determine a position which meets those restrictions in
which to place Complainant.
(4) Subject to the requirements of paragraph (2), the Agency agrees to
provide Complainant with an official written job offer. This written
job offer will describe the position offered, the amount of salary and
the time allowed to accept or decline the offer.
(5) If Complainant is reemployed at a lower grade or pay level than
previously held. Office of Workers' Compensation Program (OWCP) will make
up the difference by determining and paying loss of wage-earning capacity
(LEWC) benefits.
Our previous decision determined that the Agency complied with the
agreement because Complainant was offered a job via the OWCP in December
2010. We noted that Complainant did not assert that the job offer failed
to accommodate his medical restrictions. We also noted that the job
offer had to be coordinated with the OWCP as indicated in provision
(5). We found that the job offer was in compliance with provision (4)
of the settlement agreement. Therefore, we affirmed the Agency’s
determination finding no breach of the settlement agreement.
In his request for reconsideration, Complainant contends that our
previous decision involved a clearly erroneous interpretation of material
fact. Complainant contends that our previous decision, noting that the
Agency coordinated with the OWCP prior to him being offered a job, was
an erroneous interpretation of material fact. Specifically, Complainant
contends that the Agency did not offer him a job to satisfy the terms
of the agreement, but offered him the job to remove him from workers’
compensation rolls. Therefore, Complainant requests that his complaint
be reinstated.
Notwithstanding Complainant’s contentions, there is no dispute that
Complainant received a job offer as agreed to in the language of provision
(4). Complainant has not asserted that the job offer violated his medical
restrictions. We note that Complainant presents the same arguments in his
request to reconsider that he argued in the previous decision. We remind
Complainant that a request for reconsideration is not a second form of
appeal. See Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736
(Aug. 20, 2007); EEO Management Directive for Part 1614 (EEO MD-110),
Chap. 9, §VII.A. (Nov. 9, 1999). Rather, it is an opportunity for
Complainant to demonstrate that the previous decision contained a clear
error of material fact or law.
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. 0120112099 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
February 24, 2012
Date
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0520110694
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520110694