0520140430
01-16-2015
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Request No. 0520140430
Appeal No. 0120114136
Agency No. AREUWIESI10NOV05179
DENIAL
Complainant timely requested reconsideration of the decision in Complainant v. Department of the Army, EEOC Appeal No. 0120114136 (May 7, 2014). 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(c). For the following reasons, Complainant's request is DENIED.
BACKGROUND
Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that:
The Army agrees to;
[3] a. In the course of routine, non-urgent business, management instructions for the Complainant should be directed through his first line supervisor. If the direct supervisor is not present or available, then management instructions will be routed through the next level supervisor present and available.
b. Return any sick leave, not to exceed 107.5 hours, used between 18 October 2010 through 25 May 2011, that can be documented by the treating physician as being directly related to workplace stress. The documentation must be in English and must address each instance of sick leave used,
c. Review and rule on any claim for compensatory time or overtime, submitted by the Complaint, with appropriate supporting documentation, to the Management Employee Relations (MER) Specialist, Wiesbaden. Civilian Personnel Advisory Center (CPAC), regarding his claim for overtime or compensatory time for the period of 23 May 2010 through 1 September 2010. If the determination by the Wiesbaden CPAC MER Specialist for entitlement is unfavorable, the Wiesbaden MER Specialist will provide Complainant with the appropriate appeal procedures and authority.
Complainant asserted that the Agency violated the agreement on June 10th and June 16th when the Director of Logistics (DOL), told Complainant that he was suspended from signing food service support documents, and in the second incident where DOL interrupted a discussion Complainant was having with a co-worker and spoke to Complainant in an angry manner. Complainant also maintained that the Agency had not yet ruled on any of his claims for sick leave, compensatory time or overtime. The Agency concluded that it had not breached the settlement agreement. The Commission affirmed this finding. The Commission found that no breach occurred with respect to paragraph 3a because the settlement did not prohibit DOL from speaking to Complainant. Further with respect to Paragraphs 3b and 3c, the Commission found that less than a month had elapsed and as the agreement did not specify a period of time, the Commission found that the Agency had not been allowed a reasonable amount of time to process the claims.
REQUEST FOR RECONSIDERATION CONTENTIONS
In his request for reconsideration, Complainant, among other things, disagrees with the Commission's finding. He maintains that DOL spoke to him about a matter when he could have waited for Complainant's first-line supervisor to communicate the information to him. Therefore, he reiterates that DOL's behavior constituted a breach. Complainant also maintains that the Agency still had not restored all of his leave, compensatory time, and overtime.
In response, the Agency, among other things, asks that Complainant's request for reconsideration be denied.
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(c), and it is the decision of the Commission to deny the request. We find that Complainant failed to demonstrate that the appellate decision 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. We find that Complainant has simply disagreed with the decision and has not provided any evidence which suggests that it was in any way incorrectly decided. Further, we find that Complainant reiterates claims that were properly and completely addressed in the appellate decision.1 Accordingly, the decision in EEOC Appeal No. 0120114136 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
___1/16/15_______________
Date
1 We remind Complainant 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) (rev. Nov. 9, 1999), at 9-17. A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or will have a substantial impact on the policies, practices, or operations of the Agency.
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0520140430
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013