05970845
09-08-1999
Carl L. White, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Mapping Agency), Agency.
Carl L. White v. Department of Defense
05970845
September 8, 1999
Carl L. White, )
Appellant, )
) Request No. 05970845
v. ) Appeal No. 01953340
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Mapping Agency), )
Agency. )
)
DENIAL OF RECONSIDERATION
On June 16, 1997, Carl L. White (hereinafter referred to as appellant)
initiated a request to the Equal Employment Opportunity Commission
(Commission) to reconsider the decision in Carl L. White v. William
S. Cohen, Secretary, Department of Defense (Defense Mapping Agency), EEOC
Appeal No. 01953340 (May 19, 1997). EEOC Regulations provide that the
Commissioners may, in their discretion, reconsider any previous 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 set forth herein, appellant's
request is denied.
ISSUE PRESENTED
The issue presented herein is whether the previous decision properly
determined that appellant failed to prove that he was subjected to race
(black), sex (male), and reprisal discrimination when he was denied
training, promotional opportunities, and opportunities to compete for
clerical and administrative positions, and not placed into the Upward
Mobility Program.
BACKGROUND
The record in this case reveals that appellant, a Custodial Worker,
WG-2, filed a formal EEO complaint in August 1992, in which he raised
the above-referenced allegations. The agency accepted appellant's
complaint for processing and conducted an investigation with regard
to the matters in question. The agency, after notifying appellant of
his right to request a hearing, issued a final decision, dismissing
appellant's complaint on the grounds that he failed to timely contact
an EEO Counselor.
On appeal, the final agency decision was reversed and the complaint
remanded for a supplemental investigation. White v. Department of
Defense, EEOC Appeal No. 01941746 (May 11, 1994). The Commission found
that appellant timely contacted an EEO Counselor on June 22, 1992,
noting that appellant asserted that he met with the Director on June 19
to discuss training, promotional opportunities, and entry into the Upward
Mobility Program. The Commission stated that while it was possible that
appellant could establish a continuing violation, it was unclear what
specific incidents appellant was referring to in his complaint.
On remand, the agency requested that appellant provide specific
information regarding his allegations, including the dates thereof.
Appellant responded, by letter dated June 13, 1994, stating generally that
the agency had filled a number of clerical positions. Appellant named
five female employees who he alleged were hired into such positions.
Appellant did not provide any information concerning training.<1>
The agency then issued a final decision dated March 9, 1995, finding
no discrimination. The agency initially determined that appellant
had not established a continuing violation. The agency further stated
that appellant failed to establish a prima facie case with regard to the
alleged denial of career opportunities. The agency noted that appellant
did not apply for any advertised positions, or submit an application
to be kept on file for available vacancies. The record also revealed
that there were no positions available under the Upward Mobility Program
during the period in question. The agency asserted that appellant did
not show that he was qualified for clerical or administrative positions.
With regard to training, the agency noted that appellant did not cite any
specific courses which he was denied. The agency stated that appellant's
request for tuition assistance for courses in grammar and time management
was denied by the Tuition Aid Committee, because the training was not
job-related. The previous decision affirmed the final agency decision.
In his request for reconsideration, appellant asserted that he was
qualified for clerical and administrative positions. Appellant noted
that one of the named female employees was non-competitively assigned
to a Personnel Assistant position. Appellant submitted a portion of a
collective bargaining agreement concerning the Upward Mobility Program,
and minutes from a grievance meeting, both of which were already contained
in the record.
The agency countered that appellant's request did not meet the criteria
for reconsideration.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of the
criteria of 29 C.F.R. �1614.407(c) is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September 28,
1989).
After a careful review of the previous decision, appellant's request
for reconsideration, the agency's response thereto, and the entire
record, the Commission finds that appellant's request fails to meet
the criteria in 29 C.F.R. �1614.407(c). Specifically, appellant has
presented no evidence to show that the previous decision's finding of
no discrimination was improper. Further, as stated, the documentation
submitted by appellant was contained in the record on appeal.
Appellant asserted that he was qualified for clerical and administrative
positions. Appellant, however, does not contend that he applied for
any specific positions or submitted an application to be considered
for potential vacancies. While appellant stated that one of the named
female employees was non-competitively appointed to the position of
Personnel Assistant, the record shows that the appointment was temporary,
and appellant did not apply for the vacancy when it was later posted.
Further, contrary to what is implied by appellant, the record reveals
that there were no Upward Mobility positions available during the period
in question. Finally, even assuming that appellant established a prima
facie case of discrimination with regard to the two courses for which he
was denied tuition assistance, appellant has submitted no evidence to show
that the action resulted from prohibited discrimination. Consequently,
based on our review of the record, we find that appellant has failed to
provide evidence which would warrant a reconsideration of the previous
decision.
CONCLUSION
After a review of appellant's request for reconsideration, the agency's
response thereto, 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 therefore the decision of the
Commission to DENY appellant's request. The decision in EEOC Appeal
No. 01953340 (May 19, 1997) remains the Commission's final decision.
There is no further right of administrative appeal on a decision of the
Commission on this Request for Reconsideration.
STATEMENT OF RIGHTS - ON RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (S0993)
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. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
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:
September 8, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Appellant also stated that he had previously been subjected to other
incidents of discrimination. The record, however, reveals that appellant
raised those matters with an EEO Counselor in 1991, and appellant
acknowledged in his affidavit that he did not file a formal complaint.
Therefore, the Commission considers those matters to have been abandoned.