0520150154
05-13-2015
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520150154
Appeal No. 0120131137
Hearing No. 570-2011-00632X
Agency No. 096110901347
DECISION ON REQUEST FOR RECONSIDERATION
Both Complainant and the Agency timely requested reconsideration of the decision in Complainant v. Department of the Navy, EEOC Appeal No. 0120131137 (November 7, 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).
Complainant worked as a police officer at the Washington Navy Yard in Washington, D.C. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American) and reprisal when: (a) around March 23, 2009, he was not permitted 8 hours of official time to prepare his retaliation complaint of 2009; (b) in 2008 or 2009, he learned the Chief of Police, his third line supervisor (S3), had been maintaining a private file containing his medical records; (c) on April 23, 2009, he was not given a CA 1 Form to document an on-the-job injury; (d) on November 18, 2009, he received a letter of reprimand from the police lieutenant who was his first line supervisor (S1); and (e) between May 10 and May 29, 2010, he served a 14-day suspension which had been proposed by the Police Captain, who was his second line supervisor (S2), and sustained by S3.
Our prior appellate decision affirmed the Equal Employment Opportunity Commission Administrative Judge's (AJ) decision by summary judgment in favor of the Agency in regard to the finding of no discrimination with respect to claims (a), (b), and (c). However, the prior appellate decision remanded claims (d) and (e), regarding the reprimand and suspension, for a hearing. The decision noted that there were sworn statements stating that minorities were treated more harshly than whites, and that two police officers "opined that Complainant was indeed disciplined because of his race and previous EEO activity." The prior decision found these statements raised a genuine issue of material fact regarding the motives of S1, S2, and S3.
In his request for reconsideration, Complainant expresses his disagreement with the previous decision regarding the dismissal of claims (a), (b), and (c). We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. Rather, a reconsideration request is an opportunity to demonstrate that the appellate 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.
It its request for reconsideration, the Agency argues that Complainant did not make arguments or present evidence with his original appeal, did not reference the statements cited in the appellate decision, or present statistics regarding other disciplinary actions. However, as this case involved an appeal from a decision issued without a hearing, the AJ's decision was properly subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). In this case, the de novo review of the evidence of record developed during the investigation revealed that there were genuine issues of material fact concerning claims (d) and (e) that required resolution through a hearing. In light of these issues, the Agency has not established that the decision to remand these claims was clearly erroneous.
After reviewing the previous decision and the entire record, the Commission finds that the requests fail to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny both requests for reconsideration. The decision in EEOC Appeal No. 0120131137 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC Hearings unit of the Commission's Washington Field Office within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer as the address set forth below that the complaint file has been transmitted to the hearings Unit. Thereafter the Administrative judge shall hold a hearing and issue a decision on incidents (d) and (e) in accordance with 29 C.F.R. �� 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. �� 1614.110.
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 (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
May 13, 2015
__________________
Date
2
0520150154
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520150154