0520140427
02-06-2015
Complainant v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Complainant
v.
Anthony Foxx,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Request No. 0520140427
Appeal No. 0120140765
Agency No. 2013-25264-FAA-06
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120140765 (April 18, 2014). 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(c).
In November 2012, Complainant filed an appeal with the Merit Systems Protection Board (MSPB) regarding a reduction in pay. He asserted that, in October 2012, the Agency wrongfully changed his pay from a GS-13, step 10, to a GS-13, step 5, for the time period 2000 through 2008, and that this caused him to have a salary over-payment and debt owed to the Agency. He alleged that the Agency's actions constituted discrimination based on race and reprisal. An MSPB Administrative Judge (AJ) dismissed the appeal for lack of jurisdiction. MSPB Docket No. DE-0752-13-0062-I-1 (July 8, 2013).
Complainant subsequently contacted an EEO Counselor on July 23, 2013, and filed a formal complaint on September 25, 2013, alleging that the Agency discriminated against him on the bases of race, color, and reprisal for prior protected EEO activity when (1) in October 2012, the Agency retroactively changed his pay from a GS-13, step 10, to a GS-13, step 5, for the time period 2000 through 2008, causing him to have a salary over-payment and debt of over $61,000; (2) due to a lump-sum salary payment made to him in 2012, he was bumped to a higher tax bracket, thereby causing him to owe the Internal Revenue Service (IRS) approximately $16,000 for the 2012 tax year; and (3) he recently learned of alleged witness tampering and intimidation concerning his 2010 MSPB appeal. The Agency dismissed claims 1 and 2 for failure to contact an EEO Counselor in a timely manner and claim 3 for failure to state a claim. With respect to claim 2, the Agency stated that Complainant should have known about the tax matter when he filed his 2012 tax returns on approximately April 15, 2013, and that a June 2, 2013, IRS notice "advised [him] of this."1 Complainant then appealed to this Commission.
In our previous decision, we reversed the dismissal of claim 1 and affirmed the dismissal of claims 2 and 3. With respect to claim 1, we noted that Complainant raised the same matter in his MSPB appeal, that he filed his MSPB appeal within 45 days of the event at issue, that the MSPB dismissed the appeal for lack of jurisdiction, and that Complainant promptly contacted an EEO Counselor after the MSPB dismissed the appeal. We remanded claim 1 to the Agency for processing. With respect to claim 2, we found that Complainant did not raise the matter with the MSPB and that Complainant should have known of the tax consequences by April 15, 2013. We noted that Complainant received a letter from the IRS on this matter on June 3, 2013. We affirmed the dismissal of claim 3 on the ground that it failed to state a claim because it constituted a collateral attack on another proceeding.
In his request for reconsideration, Complainant challenges the dismissal of claim 2. He asserts that he discussed "issues in Claim 1 and Claim 2" with the MSPB AJ and the Agency's attorney during a November 12, 2012, status conference.
We remind Complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here.
Complainant has not established that the previous decision erroneously found that he did not raise claim 2 with the MSPB and did not bring the claim to the attention of an EEO Counselor in a timely manner. He has offered no evidence to support his assertion that he discussed claim 2 during a status conference regarding his MSPB appeal. Further, neither Complainant's MSPB appeal nor the MSPB AJ's decision addressed claim 2.
After reviewing 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(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120140765 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER (E0610)
The Agency is ordered to process the remanded claim 1 in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
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
February 6, 2015
Date
1 According to the EEO Counselor's Report, Complainant told the Counselor that he received a notice from the IRS on July 22, 2013. Complainant, however, has not disputed the accuracy of the June 3, 2013, date.
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0520140427
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520140427