0520140285
09-26-2014
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Request No. 0520140285
Appeal No. 0120140190
Agency No. ARANAD13JUN01982
DENIAL
Complainant timely requested reconsideration of the decision in Complainant v. Department of the Army, EEOC Appeal No. 0120140190 (March 5, 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). For the following reasons, Complainant's request for reconsideration is denied.
BACKGROUND
In the appellate decision, Complainant alleged that he was subjected to discrimination on the basis of disability when: 1. on or about May 18, 2013, Complainant became aware that a similarly situated employee, [Employee G], was given a permanent job due to his on the job injury, whereas Complainant was not; and 2. on or about March 30, 2013, Complainant became aware that he would not be made a permanent employee, when he received a letter from management stating that his last day of employment at Anniston Army Depot would be that day. The Agency dismissed Complainant's complaint for untimely EEO Counselor contact noting that Complainant contacted an EEO Counselor on June 18, 2013, which was well beyond the forty-five day time limitation period to contact an EEO Counselor. The Agency found that Complainant failed to provide sufficient justification for extending or tolling the time limit. The Commission found that while the Agency had framed the complaint as two distinct claims, in essence, Complainant believed he was subjected to discrimination when he learned that he would no longer be employed by the Agency, which occurred on March 30, 2013. It was unclear however, as to precisely when Complainant made inquiries regarding another employee's placement in a permanent position, as the employee was made a permanent employee in March 2009. Therefore, the Commission found that the Agency's dismissal of the complaint for untimely EEO Counselor contact was proper. As such, the Commission affirmed the Agency's decision.
REQUEST FOR RECONSIDERATION CONTENTIONS
In his request for reconsideration Complainant explains the details of the case. He maintains that maybe his complaint was not clear, in that, he filed his complaint based on the fact that the coworker got his permanent position because of his on-the-job injury.
In response, the Agency asserts that while Complainant discussed the merits of his case in his request for reconsideration, he did not provide any information as to why his untimely contact with an EEO Counselor should be tolled.
ANALYSIS AND FINDINGS
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. We find that Complainant failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. As noted in the previous decision, Complainant did not contact an EEO Counselor within the proscribed 45 day time limit. We note, that in his request for reconsideration, Complainant argues the merits of his case, not the procedural matters that were at issue in the previous decision. Accordingly, the decision in EEOC Appeal No. 0120140190 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
__9/26/14________________
Date
2
0520140285
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140285