0520061071
10-17-2006
Neal A. Reinemann, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Neal A. Reinemann v. Department of the Air Force
05A61071
10-17-06
.
Neal A. Reinemann,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Request No. 05A61071
Appeal No. 01A55983
Agency No. 9X1M05014
DECISION ON REQUEST TO RECONSIDER
On September 1, 2006, Neal A. Reinemann (complainant) timely requested
reconsideration of the decision in Neal A. Reinemann v. Michael W. Wynne,
Secretary, Department of the Air Force, EEOC Appeal No. 01A55983
(August 18, 2006). EEOC regulations provide that the Commission may,
in its discretion, grant a request to reconsider any previous Commission
decision where the party demonstrates that: (1) the appellate 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).
The previous decision addressed complainant's claims of discrimination
based on age (DOB 1/17/1946) and in reprisal for prior EEO activity when
(a) his security clearance was revoked in January 2003; (b) the agency
proposed his removal in August 2003; and (c) he was subjected to a
hostile work environment from 1991. In our decision, we agreed with the
Administrative Judge's (AJ) dismissal of complainant's complaint and found
that issue (a) was untimely brought to the attention of an EEO counselor
and properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2);<1> that
issue (b) concerned a proposed action and was properly dismissed pursuant
to 29 C.F.R. � 1614.107(a)(5); and that, as to issue (c), to sustain
a claim of hostile work environment, at least one adverse employment
event must have occurred within 45 prior to complainant's EEO contact,
and complainant did not state an adverse action that fell within the
time period.
As his request, complainant submitted the same brief as he submitted on
appeal, which argued the merits of his case. However, as noted above,
the previous decision affirmed the AJ's dismissal of his complaint
on procedural grounds and did not address the merits. In order to
warrant 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. Complainant's request did not
address the reasons for dismissal of his complaint, and he has not met
the criteria for review.
After a review of the complainant's request for reconsideration, 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. 01A55983 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request.
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
___10-17-06_______________
Date
1Complainant contacted an EEO counselor on August 17, 2004, and filed
his formal complaint on September 17, 2003. Because the Commission
found that complainant should have reasonably suspected discrimination
in early 2003, we affirmed the dismissal of this claim.