0520100555
12-16-2010
Andrew J. McFarlane, Complainant, v. Gregory B. Jaczko, Chairman, Nuclear Regulatory Commission, Agency.
Andrew J. McFarlane,
Complainant,
v.
Gregory B. Jaczko,
Chairman,
Nuclear Regulatory Commission,
Agency.
Request No. 0520100555
Appeal No. 0120090086
Agency No. NRC-07-10
DENIAL
Complainant timely requested reconsideration of the decision in Andrew
J. McFarlane v. Nuclear Regulatory Commission, EEOC Appeal No. 0120090086
(July 22, 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).
In the previous decision, the Commission found that Complainant failed
to establish that he was harassed or discriminated against on the bases
of sex or reprisal when, from April 25, 2006, to November 13, 2007, he
allegedly was subjected to a hostile work environment. Specifically,
the Commission found, regarding the acts Complainant alleged to be
discriminatory or harassing, that the Agency produced legitimate,
nondiscriminatory reasons for its actions, which Complainant failed
to show were based on a discriminatory intent or rose to the level of
actionable harassment.
In his request for reconsideration, Complainant argues that the Commission
incorrectly found that the behavior and actions of which he complained did
not rise to the level of actionable harassment, and that the Commission
failed to consider a rebuttal statement he submitted in response to the
Agency's denials. Complainant's request does not meet the criteria for
reconsideration because, despite his assertions concerning our harassment
findings, Complainant has failed to show our previous decision is based
on an erroneous interpretation of material fact or law. We note that
the Commission considers all relevant evidence on appeal, whether or not
specifically cited in its decision. Further, we note that Complainant,
during the proceedings below, withdrew his request for a hearing, and
therefore did not avail himself of the opportunity for an Administrative
Judge to determine the credibility of the Agency's explanation for its
actions.
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. 0120090086 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
December 16, 2010
Date
2
0520100555
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520100555