0520110676
02-24-2012
Enda M. Boggins, Complainant, v. Nancy Hellman Bechtle, Chair, The Presidio Trust, Agency.
Enda M. Boggins,
Complainant,
v.
Nancy Hellman Bechtle,
Chair,
The Presidio Trust,
Agency.
Request No. 0520110676
Appeal No. 0120100121
Agency No. PT0902-EB01
DENIAL
The Agency timely requested reconsideration of the decision in Enda
M. Boggins v. The Presidio Trust, EEOC Appeal No. 0120100121 (July
29, 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
The previous decision concerned Complainant’s appeal of the Agency’s
dismissal of his complaint of employment discrimination based on physical
disability, in violation of Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. § 791 et seq. (Rehabilitation Act). The Agency’s
decision determined that Complainant’s complaint fell under that section
of its enabling statute which it claims exempts it from coverage of the
federal anti-employment discrimination statutes when the claims involve
the “appointment, compensation, or termination of Federal employees,”
and found that the Commission would not have jurisdiction to review its
dismissal of Complainant’s complaint. The Agency dismissed three
of Complainant’s claims as untimely raised with an EEO Counselor,
citing 29 C.F.R. § 1614.107(a)(2), and its own internal regulations.
The Agency dismissed the fourth claim in Complainant’s complaint for
failure to state a claim, citing 29 C.F.R. § 1614.107(a)(1), and its own
internal regulations. The Agency dismissed Complainant’s claimed basis
of discrimination based on his Office of Workers’ Compensation Programs
(OWCP) claim as a collateral attack on another process. Complainant
appealed the dismissal to the Commission, despite the Agency’s omission
of notice of his right to do so in its dismissal decision.
Our decision on appeal found that the Commission had previously addressed
the arguments raised by the Agency regarding jurisdiction in Newman
v. The Presidio Trust, EEOC Appeal No. 01A24736 (Mar. 18, 2003), req. for
recon. denied, EEOC Request No. 05A30686 (Mar. 18, 2004). In Newman, the
Commission determined that it may exercise jurisdiction over the Agency
with regard to claims of discrimination raised under Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title
VII) and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. (ADEA). Newman v. The Presidio Trust,
EEOC Appeal No. 01A24736. That decision stated that the Agency is not
free from “compliance with federal antidiscrimination statues…that
were enacted to protect against unlawful employment practices.” Id.
Newman also specified that the federal antidiscrimination statutes
included the Rehabilitation Act. Id. at n. 8.
The appellate decision then affirmed the Agency’s decision in part
and reversed in part. We remanded for investigation Complainant’s
claims that he was discriminated against based on disability when: 1)
he was denied appropriate training, terminated from employment effective
September 10, 2008, denied reconsideration, and denied reinstatement
because of his disability; 2) his request for reconsideration was
denied on October 8, 2008; and 3) he was not selected for the position
of Maintenance Inspector, for which he applied on January 27, 2009.
ARGUMENTS ON RECONSIDERATION
In its request for reconsideration, the Agency argued that the Commission
had made a clearly erroneous interpretation of material fact or law
when it determined that the Agency was within the jurisdiction of
the Commission in this matter. The Agency argued that the previous
decision “ignored memoranda opinions of the Department of Justice,
Office of Legal Counsel to the contrary,” and did not grant those
opinions “sufficient deference.” It also argued that the “full
Commission has not previously addressed this jurisdictional issue,
following the June 22, 2004 and December 8, 2005 OLC opinions.” The
Agency further argued that our reversal of its dismissal of three of
Complainant’s claims was incorrect.
In his response to the Agency’s request for reconsideration, Complainant
opposed the Agency’s arguments and noted that the Agency had not raised
any new authorities or arguments regarding jurisdiction which had not
already been raised with and previously considered by the Commission.
Complainant’s argument notes that Department of Justice, Office of
Legal Counsel opinions are not binding on executive agencies through
force of statute, executive order, resolution or regulation, but merely
through “tradition.” Complainant urged the Commission to deny the
Agency’s request for reconsideration.
DETERMINATION
We find that the Agency’s request for reconsideration fails to show
that our previous decision involved a clearly erroneous interpretation
of fact or law. The Agency advanced arguments in its request for
reconsideration that have been advanced, and considered, in not only
the initial appeal in this complaint, but in many of the other appeals
before this Commission involving the Agency. We note that a request
for reconsideration is not a second form of appeal. See, e.g., Lopez
v. Dep’t of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007).
This Commission has squarely rejected those arguments over its supposed
lack of jurisdiction over the Agency, and found that it does indeed have
the jurisdiction to enforce the federal antidiscrimination statues with
respect to the Agency. The Agency does not otherwise show that the
previous decision was clearly erroneous.
We note that in two previous cases issued by the Commission in which
violations of the Rehabilitation Act were alleged against the Agency, the
Agency did not contest the Commission’s jurisdiction over the complaint.
In Kraus v. The Presidio Trust, EEOC Appeal No. 01A45553 (April 27,
2006), the Commission addressed the merits of that complainant’s
complaint alleging discrimination on the bases of race, sex, disability,
and reprisal. The complaint was accepted for investigation, complainant
requested a hearing before an Administrative Judge, who issued a
decision finding that complainant had not been discriminated against,
which the Agency implemented, and the Commission affirmed. In Glenn
v. The Presidio Trust, EEOC Appeal No. 01A52702 (April 27, 2006),
req. for recon. denied, EEOC Request No. 05A60667 (May 26, 2006), the
Agency dismissed complainant’s complaint alleging age, disability, and
reprisal discrimination, citing sections under 29 C.F.R. § 1614.107.
The Commission affirmed the Agency’s dismissal of the complaint,
and denied the complainant’s subsequent request for reconsideration.
In neither case did the Agency contest the jurisdiction of the Commission,
which was specifically noted in each decision. We note that a bifurcated
system, in which some Agency employees enjoy the protections of the
statutes enforced by the Commission and some do not, is contrary to
principles of justice and fairness, and an unacceptable outcome in the
view of the Commission.
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. 0120100121 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request. The Agency
shall comply with the Order as set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded claims, as listed above,
in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge
to the Complainant that it has received the remanded claims within
thirty (30) calendar days of the date 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.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
Compliance with the Commission’s corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and
the Agency must send a copy of all submissions to the Complainant. If the
Agency does not comply with the Commission’s order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. §�
�1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
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
February 24, 2012
Date
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0520110676
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110676