0520120622
03-08-2013
Craig J. Schwartz, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Drug Enforcement Administration), Agency.
Craig J. Schwartz,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.
Request No. 05-2012-0622
Appeal No. 0120102531
Agency No. DEA200800150
DENIAL
Complainant timely requested reconsideration of the decision in Craig J. Schwartz v. Department of Justice, EEOC Appeal No. 0120102531 (August 8, 2012). 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(b).
BACKGROUND
In the underlying case, Complainant contends that the Agency improperly adopted an EEOC Administrative Judge's (AJ) decision dismissing his EEO complaint alleging that the Agency subjected him to a hostile work environment on the basis of religion (Judaism) between 2005 and 2007, which culminated when the Agency did not honor his choice of preferred reassignment locations, for untimely EEO Counselor contact. Complaint alleged that the timeframe for EEO Counselor contact should begin on the day that his assignment in Chicago was effectuated on paper. In the underlying appeal, the Agency requested that the Commission affirm the dismissal because Complainant knew or should have known about the alleged discriminatory act 45 days prior to when he contacted the EEO Counselor.
The Appellate decision affirmed the dismissal of the complaint finding that under the "reasonable suspicion" standard, Complainant knew or should have known that he was discriminated against prior to April 15, 2007, which was when he was informed that his choice of preferred locations was denied and that he was being assigned to Chicago.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant requests that the Commission reconsider its appellate decision because the decision was based on "erroneous interpretation of material facts or law". In his request, Complainant presents new evidence which he says supports his contention that his EEO Counselor contact was timely. In response to Complainant's request, the Agency argues that Complainant cannot present new evidence in support of his contention that he made timely EEO Counselor contact when this evidence was available to him at the time he filed his initial appeal.
ANALYSIS AND FINDINGS
Complainant is reminded 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), Ch. 9 � VII.A. (Nov. 9, 1999). Because Complainant has not put forth any arguments which the Commission finds to be material to the outcome of the underlying decision, or that were not previously considered in rendering the underlying decision, the Commission finds that Complainant has not demonstrated that the underlying decision involved a clearly erroneous interpretation of material fact or law. The Commission has long held that it is improper to merely reargue the underlying facts of a case in a request for reconsideration. Neither has Complainant argued or demonstrated that the underlying decision would have a substantial impact on the policies, practices, or operations of the Agency. Additionally, we find that Complainant has failed to demonstrate that the new evidence presented in the request was unavailable to him at the time he filed his initial appeal.
CONCLUSION
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(b), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120102531 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
__3/8/13________________
Date
2
05-2012-0622
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120622