0520120268
11-21-2012
Robert C. Tencer, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Robert C. Tencer,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Request No. 0520120268
Appeal No. 0120110575
Agency No. HS09TSA004863
DENIAL
Complainant timely requested reconsideration of the decision in Robert C. Tencer v. Department of Homeland Security, EEOC Appeal No. 0120110575 (January 13, 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 underlying case Complainant alleged that the Agency subjected him to discrimination on the bases of race (Caucasian), religion (Jewish), disability (physical and mental), and in reprisal for prior protected EEO activity when he was subjected to discriminatory harassment over a period of several months in the form of: discriminatory and harassing remarks by a co-worker regarding his religion; disparate discipline by management; management's interference with Complainant filing complaints regarding the alleged harassment; management's failure to provide Complainant with a reasonable accommodation from December 11, 2008 through April 8, 2009; and by ultimately terminating Complainant on April 8, 2009. The Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b), concluding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The appellate decision affirmed the Agency's final decision. The appellate decision found that Complainant failed to establish that he was subjected to hostile work environment harassment as alleged, and that he did not show that the Agency's actions were motivated by discriminatory or retaliatory animus. Additionally, the appellate decision found that record was void any evidence to support the contention that Complainant ever requested a reasonable accommodation.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant respectfully requests that the Commission reconsider and overturn its appellate decision. Complainant argues that the decision is based on erroneous facts, and that proper understandings of the definitions were overlooked in the decision. In addition to these general arguments in his request, Complainant submitted three briefs containing what he describes as "new evidence." Complainant's brief dated May 29, 2012 contains a copy of an incident report from November 2008, Complainant states was never investigated. Complainant argues that this report is direct evidence of probable destruction and suppression of evidence at the hands of Agency officials. Complainant's brief received July 30, 2012 contains expert testimony concerning the problems that results from the type of conduct to which he was subjected and the affect that symbols of terror have on an orthodox Jewish man; and a discussion regarding why Complainant is entitled to equitable relief in the form of a promotion. Lastly, Complainant's brief dated July 12, 2012 contains a medical evaluation from his treating physician. Complainant contends that the information in this submission supports his request for compensatory damages as to extent, nature, severity, and duration of the harm.
ANALYSIS AND FINDINGS
Complainant is reminded 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), Ch. 9 � VII.A. (Nov. 9, 1999). We note that the Commission long ago eliminated the provision for submitting new and material evidence as a basis for granting reconsideration with the implementation of new regulations on November 9, 1999. See 29 C.F.R. � 1614.405 (b) et seq; Murphy v. Department of Veterans Affairs, EEOC Request No. 05A10724 (August 8, 2001). Additionally, the Commission has consistently held that arguments raised for the first time on request for reconsideration cannot be considered at this stage of the proceedings. Choates v. Federal Deposit Insurance Corporation, EEOC Request No. 05970012 (May 21, 1998); Calloway v. Dep't of the Army, EEOC Request No. 05930911 (Mar. 17, 1994); Stiles v. Dep't of Transportation - FAA, EEOC Request No. 05940525 n.4 (Feb. 9, 1994); Valverde v. Department of Agriculture, EEOC Request No. 05900961 (Oct. 19, 1990). Therefore the Commission will not consider the new evidence, or arguments which Complainant now submits in this request.
Because Complainant has not put forth any arguments which the Commission finds to be material to the outcome of the underlying decision, or that were not previously considered in rendering the underlying decision, the Commission finds that Complainant has not demonstrated that the underlying decision involved a clearly erroneous interpretation of material fact or law. Neither has Complainant argued or demonstrated that the underlying decision would have a substantial impact on the policies, practices, or operations of the Agency.
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. 0120110575 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
___11/21/12_______________
Date
2
0520120268
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120268