0520120447
11-15-2012
William C. Boone, Complainant, v. Karen G. Mills, Administrator, Small Business Administration, Agency.
William C. Boone,
Complainant,
v.
Karen G. Mills,
Administrator,
Small Business Administration,
Agency.
Request No. 0520120447
Appeal No. 0120120918
Agency No. SBA-07-08-046
DENIAL
Complainant timely requested reconsideration of the decision in William C. Boone v. Small Business Administration, EEOC Appeal No. 0120120918 (May 4, 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).
The previous decision affirmed the Agency's determination that it was not in breach of a settlement agreement signed between the parties on October 28, 2008. The previous decision concluded that the Agency was not required under the terms of the agreement to construct a new office for Complainant when he was moved out of the Deputy District Director's office once that position had been filled. It found that Complainant was moved to an office commensurate with his grade (GS-14) and position (Assistant District Director), and that the agreement was silent as to any amenities that Complainant was entitled to have in his office (such as windows or climate control).
In his request for reconsideration, Complainant argued that the previous decision was clearly erroneous when it concluded that his present office space was commensurate with his grade and position, and when it concluded that the Agency was not required to construct a new office space for him. He argued that the filling of the Deputy District Director position required that a new office space would be constructed for him. The Agency did not submit any statement or brief in opposition to Complainant's request for reconsideration.
We find that Complainant has not shown that the previous decision involved a clearly erroneous interpretation of material fact or law. The language at issue in the settlement agreement states: "Management agrees that when and if the vacant position (Deputy District Director) is filled, [Complainant] will be placed in an office commensurate with his grade and position in the New Jersey District Office. This may require construction of a new office space." (italics added) Complainant, a GS-14, was moved into the office occupied by the District Counsel, also a GS-14; therefore, the finding that he was moved to an office commensurate with his grade and position was not erroneous. We also find that the previous decision did not err when it found that the Agency was not required to construct a new office space for Complainant, as the language in the settlement agreement states that it "may" be necessary to construct new office space, not that it "shall" be required to construct new office space. The more permissive use of "may" gives the Agency the option to construct new office space if an appropriate, vacant office space is not located. If Complainant wished to require construction of a new space once he would vacate the Deputy District Director's office, he should have bound the Agency with language which mandated that construction.
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. 0120120918 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 15, 2012
Date
2
0520120447
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120447