0520140545
03-04-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520140545
Appeal No. 0120131297
Hearing No. 430-2009-00411X
Agency No. 2004-0652-2009101144
DENIAL
Complainant timely requested reconsideration of the decision in Complainant v. Department of Veterans Affairs, EEOC Appeal No. 0120131297 (August 12, 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 the underlying case, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity when: (1) on November 25, 2008, it did not select him for the position of Maintenance Worker, WG-8, under announcement number 08-112; (2) on January 16, 2009, it did not select him for the position of Painter, WG-9, under announcement number
09-120; and (3) on February 11, 2009, it did not select him for the position of Maintenance Worker, WG-8, under announcement number 09-33.
On June 2, 2009, the Agency partially dismissed Complainant's complaint. Specifically, the Agency accepted claim 1 for investigation but procedurally dismissed claims 2 and 3. At the conclusion of the investigation on claim 1, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. On June 14, 2010, the AJ dismissed Complainant's hearing request for failure to prosecute and for failure to comply with an order. The AJ remanded the complaint to the Agency for the issuance of a final decision. On remand, the Agency determined that claims 2 and 3 were improperly dismissed and conducted a supplemental investigation on those claims.
On May 31, 2011, after completing its supplemental investigation, the Agency issued a final decision procedurally dismissing claim 1 and finding no discrimination in claims 2 and 3 (FAD1). Complainant appealed FAD1 to the Commission.
In EEOC Appeal No. 0120113353 (December 9, 2011), the Commission found that the AJ properly dismissed Complainant's hearing request. In addition, the Commission affirmed the Agency's finding of no discrimination in claims 2 and 3. However, the Commission reversed the Agency's procedural dismissal of claim 1 and remanded the claim to the Agency for further processing in accordance with the following Order:
The Agency is ordered to process remanded claim 1 in accordance with
29 C.F.R. � 1614.108. The Agency shall acknowledge to Complainant that it has received the remanded claim 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 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.
The Agency requested reconsideration of the Commission's decision. In EEOC Request No. 0520120232 (June 9, 2012), the Commission denied the Agency's request.
On January 8, 2013, the Agency issued a final decision finding no discrimination in claim 1 (FAD2). Complainant appealed FAD2 to the Commission.
The appellate decision affirmed FAD2's finding of no discrimination in claim 1. Before finding no discrimination, the appellate decision addressed Complainant's argument that the Agency had denied him the right to request a hearing on claim 1 in accordance with the Order in EEOC Appeal No. 0120113353. The appellate decision acknowledged that the Order could be read as indicating that Complainant may have the right to request a hearing. The appellate decision, however, found that it was not appropriate to allow Complainant the right to request another hearing on claim 1 because of the Commission's previous finding in EEOC Appeal No. 0120113353 that the AJ had properly dismissed Complainant's hearing request.
In his request for reconsideration, Complainant contended that the appellate decision clearly erred when it allowed the Agency to deny him the right to request a hearing in all three claims. Regarding claim 1, Complainant reiterated his previous argument that the Agency did not comply with the Order in EEOC Appeal No. 0120113353 when it issued FAD2 without giving him the right to request a hearing. Regarding claims 2 and 3, Complainant argued that those claims were never the subject of any proceeding before an AJ.
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. Specifically, we find that Complainant's request does not demonstrate that the appellate decision clearly erred in affirming FAD2.
As to claim 1, the record reflects the following: the Agency investigated the claim; the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing; Complainant requested a hearing; and the AJ dismissed Complainant's hearing request. In addition, as noted in the appellate decision, the Commission had determined in EEOC Appeal No. 0120113353 that the AJ's dismissal of Complainant's hearing request was proper. Based on the above, we find that Complainant was not denied the right to request a hearing on claim 1. We note that Complainant previously raised this argument on appeal and we remind Complainant that a request for reconsideration is not a second appeal to the Commission. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Ch. 9, � VII.A (Nov. 9, 1999). As to claims 2 and 3, we decline to address them here because FAD2 and the subsequent appellate decision - which Complainant now requests reconsideration of - only involved claim 1.
The decision in EEOC Appeal No. 0120131297 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
__3/4/15________________
Date
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0520140545
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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