05970039
10-23-1998
Martin Johnson, Jr., Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, Agency.
Martin Johnson, Jr. v. Department of the Treasury
05970039
October 23, 1998
Martin Johnson, Jr., )
Appellant, )
) Request No. 05970039
v. ) Appeal No. 01960240
) Agency No. 95-2220
Robert E. Rubin, )
Secretary, )
Department of the Treasury, )
Agency. )
______________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
INTRODUCTION
On October 12, 1996, Martin Johnson, Jr., (hereinafter referred to
as the appellant) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision in
Martin Johnson, Jr., v. Robert E. Rubin, Secretary, Department of the
Treasury, EEOC Appeal No. 01960240 (September 19, 1996), received on
September 24, 1996. EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons that follow, appellant's
request is DENIED.
ISSUES PRESENTED
The issues presented are whether appellant's request meets any
criteria for reconsideration of the previous decision set forth at 29
C.F.R. �1614.407(c), and whether the previous decision was correctly
decided.
BACKGROUND
On June 20, 1994, the agency announced vacancies for three Acting
Plate-Maker Foreman (hereinafter Acting Foreman) positions. The Vacancy
Announcement Number was 94-0109-CMP. The announcement indicated that:
"Selection to a permanent position will be made from the candidates in the
Acting pool, as vacancies occur." (Emphasis added). Appellant did not
apply for an Acting Foreman position because the announcement indicated
that the applicant had to be a "[J]ourneyman Plate Maker (Intaglio)
with demonstrated ability to perform the eltroforming and mechanical
processing of nickel plates." The selections for the Acting Foreman
positions were made on October 16, 1994.
According to the EEO counselor's report, on April 19, 1995, appellant
contacted an EEO counselor regarding his not being able to apply and
qualify for one of the Acting Foreman positions. On May 1, 1995, he
filed a formal complaint alleging discrimination based on race (Black).
Appellant maintained that the agency discriminated against him in writing
the qualifications requirements for the positions, which precluded him
from applying.
The record indicates that in June 1992 and December 1993, appellant
applied for the position of Plate-Maker. He was, however, not selected
for either vacancy, because he did not meet the basic qualifications
for the position. In August 1994, appellant filed a charge with the
Federal Labor Relations Authority (the Authority). Appellant challenged
the qualification requirements. By letter dated September 30, 1994,
appellant was informed by the Authority that his charge was filed in an
untimely manner. In a letter dated October 26, 1994, appellant appealed
the decision. He alleged that:
Had I been of the white race with the same experience and qualified to
perform duties in the processing occupation we would not be conversing
today. But, being as it is I am a 53 yr [sic] old black male with my
experience and qualifications being questioned I am unable to leave
this practice as it is being conducted. The Bureau of Engraving &
Printing has on several occasions been questioned on the promotion and
hiring of blacks. Title VII of the Civil Rights Acts [sic] prohibits
discrimination based on race, color, sex and age. My equal rights under
Title VII are being violated at the Bureau of Engraving and Printing.
On January 26, 1995, the Authority informed appellant, among other things,
that his appeal was not within its jurisdiction.
The agency, in its September 19, 1995 final decision, found that
appellant's EEO counselor contact was untimely. The agency found that
the 45-day limitation period was triggered on or about June 20, 1994,
when appellant learned of the qualification requirements for the Acting
Foreman positions. Consequently, appellant's complaint was dismissed.
On appeal, appellant, in an October 5, 1995 letter, said that the
agency, both in its EEO counselor's report and final decision, erred
when it said that his formal complaint pertained to the Acting Foreman
positions. According to appellant, his complaint pertained to the
permanent position of Foreman of the Plate-Maker Division (hereinafter
the permanent position). As previously noted, the selection for the
permanent position was made from the candidates in the Acting pool.
According to appellant, he did not discover that a selection had been
made with regard to the permanent position until he read a publication
called "Tech Notes" dated April 11, 1995. At that time, appellant said
he realized that he was being discriminated against.
The previous decision, after finding that "appellant presented no
arguments or evidence regarding his initial EEO contact," found that his
complaint was properly dismissed pursuant to 29 C.F.R. �1614.107(b).
According to appellant, his request for reconsideration (RTR) is "[b]ased
on new and material evidence that [has] such [an] exceptional nature as
to have substantial precedential implications [sic]." Specifically, he,
in pertinent part, reiterates his contention that his formal complaint
pertained to the permanent position and not the Acting Foreman position.
The agency did not respond to appellant's RTR.
ANALYSIS AND FINDINGS
The Commission's scope of review on a request to reconsider is narrow.
Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989). In order for a case to be reconsidered, the
request must contain specific information which meets the requirements
of 29 C.F.R. �1614.407(C). A request to reconsider is not merely a
form of a second appeal. Regensberg v. United States Postal Service,
EEOC Request No. 05900850 (September 7, 1990).
Based on a careful review of the record, we find that the facts available
to appellant in June 1994, when he discovered what the qualification
requirements were for the Acting Foreman position, should have caused
him to suspect that the agency's actions could have been motivated by
unlawful discrimination; consequently, he should have contacted an EEO
counselor prior to the expiration of the 45-day time limitation period.
We are not persuaded by appellant's contention that the discriminatory
event occurred in April 1995, when he discovered that a selection had
been made regarding the permanent position.<1>
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request fails to meet the criteria of 29 C.F.R. �1614.407(c), and it is
the decision of the Commission to deny appellant's request. The decision
of the Commission in EEOC Appeal No. 01960240 (September 19, 1996) remains
the Commission's final decision in this matter. There is no further
right of administrative appeal from the decision of the Commission on
this request for reconsideration.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
OCT 23, 1998
DATE Frances M. Hart
Executive Officer
1Since appellant did not apply for the Acting Foreman position, we find
it questionable whether he even states a claim regarding his not being
selected for the permanent position. We, however, will not address that
issue in this decision.