0520100478
09-24-2010
Jeffrey L. Yarberry, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Jeffrey L. Yarberry,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Request No. 0520100478
Appeal No. 0120090449
Agency No. APHIS200701022
DENIAL
Complainant timely requested reconsideration of the decision in Jeffrey L. Yarberry v. Department of Agriculture, EEOC Appeal No. 0120090449 (June 18, 2010). 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 record indicates that Complainant did not file a formal complaint of discrimination. According to the record, in an August 30, 2007, letter, the Agency informed Complainant that an EEO Counselor would be contacting him to discuss his concerns. In a September 7, 2007, e-mail to Complainant, the EEO Counselor stated that she had received Complainant's September 5, 2007, election form for traditional EEO counseling and would be contacting him in the near future. Complainant averred that he made numerous attempts to contact her between November 2007 and January 2008, but was unable to proceed with his EEO case.
In November 2007, Complainant contacted his Congresswoman to request her assistance. In a January 30, 2008, response to the Congresswoman's letter of inquiry, the Agency asserted that the EEO Counselor sent Complainant a Notice of Right to File on November 16, 2007, and that Complainant did not, thereafter, file a formal complaint. Accordingly, the record indicates that no final Agency decision was ever issued.
APPELLATE DECISION
On October 29, 2008, Complainant filed an appeal with the Commission. In its decision, the Commission noted that in a letter dated January 30, 2008, the Agency averred that Complainant failed to file a formal complaint in response to its Notice of Right to File, which was mailed on November 16, 2007. The Commission noted that Complainant did not file a formal EEO complaint and the Agency did not issue a final decision. On these grounds, the Commission determined that it did not have jurisdiction to review Complainant's case. Accordingly, the Commission dismissed Complainant's appeal.
RECONSIDERATION REQUEST
In support of his request, Complainant averred that the appellate decision would have a substantial impact on the policies, practices, or operations of the Agency. Complainant also contended that the Agency committed numerous prohibited personnel practices, including the intentional manipulation of processes, falsifying of documents and misrepresenting factual information, and conspiring to discriminate against him during both the hiring process, as well as all attempts to seek relief through appropriate agencies and avenues. Complainant further averred that the Agency failed to properly manage and respond to his request for relief through the Agency's EEO entity. Finally, he contended that the Agency neglected to investigate his claims, and did not advise him of his right to file a formal EEO complaint.
ANALYSIS AND FINDINGS
Initially, we note that Complainant introduces new arguments and evidence in his request that address the merits of his underlying complaint. In this regard, Complainant's arguments that, inter alia, the Agency committed numerous personnel violations and conspired to discriminate against him, are not pertinent to the instant request. We note that in a request to reconsider, a Complainant is required to show that the appellate decision involved a clearly erroneous interpretation of material fact or law; or 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). "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), 9-17 (November 9, 1999). Accordingly, these matters will not be addressed.
The Commission's scope of review on a request for reconsideration is narrow and is not merely a second appeal. Lopez v. Department of the Air Force, EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS, EEOC Request No. 05900850 (September 7, 1990). We find that the appellate decision correctly determined that the Commission did not have jurisdiction over Complainant's appeal because a final Agency decision was never issued. Accordingly, after a careful review of Complainant's arguments, we find that his request does not meet the regulatory criteria of 29 C.F.R. � 1614.405(b), in that the request does not identify a clearly erroneous interpretation of material fact or law, nor does it show that the underlying decision will have a substantial impact on the policies, practices, or operation of the Agency.
CONCLUSION
Complainant's reconsideration request is DENIED. The decision in EEOC Appeal No. 0120090449 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
____9/24/10______________
Date
2
0520100478
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520100478