05a01200
11-09-2000
Clarence L. Johnson, Complainant, v. Louis Caldera, Secretary, Department of the Army Agency.
Clarence L. Johnson v. Department of the Army
05A01200
November 9, 2000
.
Clarence L. Johnson,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army
Agency.
Request No. 05A01200
Appeal No. 01974586
Agency No. COL-96-AR-044-E
Hearing No. 100-96-7282X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Clarence
L. Johnson v. Department of the Army, EEOC Appeal No. 01974586 (July
27, 1999).<1> EEOC Regulations provide that the Commission may, in
its discretion, 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 his original complaint, complainant alleged that he was discriminated
against because of his race (Black), and age (51), when on April 17,
1995, he was not selected for one of five positions of Firefighter,
GS-081-05/06. In his Recommended Decision (RD), however, the
Administrative Judge (AJ) found that the nonselection of complainant was
due to an administrative error by a Personnel Staffing Specialist (�PSS�)
who failed to properly note complainant's status and, therefore, included
his name along with the nonstatus eligible applicants. Inasmuch as
the PSS was not aware of complainant's race and there was no showing
that his age was a factor in the administrative error, the AJ found
that complainant failed to establish discrimination. Subsequently, the
agency adopted the RD as its own final decision (FAD), and on appeal,
the Commission affirmed the FAD.
In his request to reconsider, complainant contends that he should have
been selected over all the other candidates because (1) he had worked
for the Federal government for fifteen years and so had reinstatement
rights, and (2) was put on active military duty for three years during
the Gulf War and so had Veterans readjustment rights.
In its comments opposing complainant's request, the agency contends
(1) that complainant's request is untimely, and (2) that in any event,
the request should be denied because complainant failed to establish
that the EEOC appeal decision involved an erroneous interpretation of
material fact or law, or that the decision would have a substantial
impact on the policies, practices, and operations of the agency.
Contrary to the agency's contention that complainant's request was
untimely, the Commission finds that it was timely, in that the decision
(EEOC Appeal No. 01974586) was dated July 27, 1999, and complainant's
request was postmarked August 24, 1999, well within the 30-day time
limit of 29 C.F.R. � 1614.405(b).
Nevertheless, we find that complainant failed to establish that the
decision involved an erroneous interpretation of material fact or law,
since complainant merely reiterated that he should have been selected
because of his rights as a former federal employee and veteran.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission therefore 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. 01974586 remains the Commission's
final decision. There is no further right of administrative appeal on
the decision of the Commission on this 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
November 9, 2000
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.