05a50542
03-21-2005
Jose A. Dones, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Jose A. Dones v. Department of Transportation
05A50542
03-21-05
.
Jose A. Dones,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Request No. 05A50542
Appeal No. 01A41500
Agency No. 3-04-3009
DECISION
Jose A. Dones (complainant) timely requested reconsideration of the
decision in Jose A. Dones v. Norman Y. Mineta, Secretary, Department
of Transportation, EEOC Appeal No. 01A41500 (January 11, 2005).
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 previous decision
involved a clearly erroneous interpretation of material fact or law;
or (2) the decision will have a substantial impact on the policies,
practices or operation of the agency. 29 C.F.R. � 1614.405(b).
In the previous decision, the Commission affirmed the agency's dismissal
of complainant's complaint for untimely contact with an EEO counselor.
29 C.F.R. � 1614.107(a)(2). Complainant claimed discrimination based on
color and age (DOB 11-29-1938) when he was denied a transfer on April
22, 2002, but he did not contact an EEO counselor until September 26,
2003, well beyond the 45-day period required by our regulations. See 29
C.F.R. � 1614.105(a)(1). In his request for reconsideration, complainant
contended that he did not suspect discrimination until September 2003,
when he learned that others were granted transfers.
In order to merit the reconsideration of a prior decision, the requesting
party must submit written argument that tends to establish that at least
one of the criteria of 29 C.F.R. � 1614.405(b) is met. The Commission's
scope of review on a request for reconsideration is narrow and is not
merely a form of 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). The Commission finds that
the complainant's 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.
The Commission's regulation require that complaints of discrimination
be brought to the attention of the EEO Counselor within 45 days of
the alleged discriminatory event, or the effective date of an alleged
discriminatory personnel action. 29 C.F.R. � 1614.105(a)(1). In his
statement attached to his complaint, he recited the multiple transfer
requests granted to others after April 2002, when his request was denied,
focusing especially on one transfer granted in May-June 2003. Nowhere in
the record does he explain why he failed to contact an EEO counselor at
that time or any time after April 22, 2002, and given his knowledge of
transfers by other employees, we find his claim that he did not suspect
discrimination until September 2003 to be disingenuous.<1>
After reconsidering 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. 01A41500 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on a request for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
_____03-21-05_____________
Date
1We note that complainant was apprised of the reason his request was
denied, i.e., the San Juan operation had one vacancy that it filled with
an operations inspector and did not need the services of complainant,
a maintenance inspector.