0520120166
11-21-2012
Wayne A. Wilson, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Wayne A. Wilson,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520120166
Appeal No. 0120112711
Agency No. 100017102504
DENIAL
Complainant timely requested reconsideration of the decision in Wayne A. Wilson v. Department of the Navy, EEOC Appeal No. 0120112711 (October 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).
BACKGROUND
In the underlying case, Complainant alleged that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), and reprisal for prior protected EEO activity, under an EEO statute that was unspecified in the record, when: (1) on February 25, 2010, he was issued a suspension without pay; (2) between 2005 and 2009 other similarly situated coworkers who were outside of his protected classes received preferential treatment with regard to duty assignments, duty hours, pay and discipline; and (3) he was subjected to retaliation by management. Prior to filing a formal complaint, Complainant filed a mixed case appeal with the MSPB, and the MSPB dismissed the appeal as untimely-filed. The Agency dismissed claims 1 and 2 for untimely EEO Counselor contact, and dismissed claim 3 for failure to state a claim. Specifically, the Agency found that Complainant did not contact an EEO Counselor until June 25, 2010, which was beyond the 45-day regulatory period. With regard to claim 3, the Agency found that Complainant had not engaged in any prior EEO activity, and therefore his claim of reprisal failed to state a claim. The previous decision affirmed the Agency's dismissal of claims 1 and 2 as untimely, but reversed the Agency's dismissal of claim 3 for failure to state a claim. Claim 3 was remanded to the Agency for further processing.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant argues that his filing with the Merit Systems Protection Board (MSPB) did not defeat EEOC's jurisdiction. Complainant argues that the Commission's decision involved a clearly erroneous interpretation of material fact because the MSPB never accepted jurisdiction of Complainant's case, but instead dismissed the case for lack of jurisdiction. Complainant contends that once the MSPB dismisses a mixed case appeal for jurisdictional reasons, the Agency is obligated to notify the individual in writing of the right to contact an EEO counselor within 45 days of receipt of the notice and to file an EEO complaint.
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). 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. Additionally, the Commission finds no evidence in the record to support Complainant's contention that the MSPB dismissed his case for lack of jurisdiction; therefore, the scenario set forth by Complainant in his request is inapplicable here.
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. 0120112711 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER (E0610)
The Agency is ordered lo process the remanded claim in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the dale this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
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
0520120166
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120166