Daniel E. O'Brien, Complainant,v.Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionFeb 28, 2001
05a01133 (E.E.O.C. Feb. 28, 2001)

05a01133

02-28-2001

Daniel E. O'Brien, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.


Daniel E. O'Brien v. Department of the Army

05A01133

02-28-01

.

Daniel E. O'Brien,

Complainant,

v.

Gregory R. Dahlberg,

Acting Secretary,

Department of the Army,

Agency.

Request No. 05A01133

Appeal No. 01A03549

Agency No. AJAGFO0003A0040

DECISION ON REQUEST TO RECONSIDER

On August 6, 2000, Daniel E. O'Brien (complainant) timely initiated a

request to the Equal Employment Opportunity Commission to reconsider the

decision in Daniel E. O'Brien v. Louis Caldera, Secretary, Department of

the Army, EEOC Appeal No. 01A03549 (July 21, 2000). EEOC regulations

provide that the Commission may, in its discretion, reconsider any

previous decision where the party demonstrates that: (1) the previous

decision involved a clearly erroneous interpretation of material fact or

law; or (2) the decision will have a substantial impact on the policies,

practices or operation of the agency. 29 C.F.R. � 1614.405(b).<1>

For the reasons set forth below, the complainant's request is denied.

The issue presented is whether complainant's request meets the criteria

for reconsideration.

Complainant contacted an EEO counselor on August 6, 1999, alleging

discrimination based on sex, age (DOB 12-1-33), and reprisal when his

rating for a position was lowered in December 1996, and he was not

selected for the position. The previous decision affirmed the agency's

dismissal of his formal complaint on the grounds that he had a reasonable

suspicion of discrimination as early as January 1997, as evidenced by

his statements in letters to the Office of Personnel Management.

In his request, complainant states his intention to �appeal� the previous

decision and "to avail myself of your offered counsel." In order to merit

the reconsideration of a prior Commission decision, the requesting party

must submit written argument that tends to establish that at least one of

the criteria of 29 C.F.R. � 1614.405(b) is met. The Commission's scope

of review on a request for reconsideration is narrow, and a request is not

merely a form of second appeal. Lopez v. Department of the Air Force,

EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS,

EEOC Request No. 05900850 (September 7, 1990).

The Commission's regulations require that a complainant bring his/her

complaint to the attention of an EEO counselor within 45 days of

an alleged discriminatory event or the effective date of an alleged

discriminatory personnel action. 29 C.F.R. �1614.105(a)(1). The record

shows that complainant failed to bring these matters to the attention

of an EEO counselor within 45 days and failed to offer a sufficient

explanation or justification for the delay. 29 C.F.R. �1614.105(a)(2).

For these reasons, we agree with the previous decision and find that

complainant's initial contact with an EEO counselor was untimely, and

his complaint was properly dismissed. 29 C.F.R. � 1614.107(a)(2).

Complainant also misreads his rights on appeal. The paragraph entitled

"Right to Request Counsel" states that "you may request that the Court

appoint an attorney to represent you," and that "grant or denial of the

request is within the sole discretion of the Court." (bold in original).

The paragraph immediately preceding affords complainant the right to file

a civil action in the appropriate United States District Court within

ninety (90) calendar days from the date that the previous decision was

received. These rights, repeated below, are given by the Commission

but counsel can only be granted by the court when a civil action has

been filed in court. Further, complainant is advised that the previous

decision, as affirmed herein, addressed the procedural issue of whether

his EEO contact was timely, and did not consider his complaint on its

merits.

CONCLUSION

After a review of the complainant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that the

complainant's request fails to meet any of the criteria of 29 C.F.R. �

1614.405(b), and it is the decision of the Commission to deny the

complainant's request. The decision of the Commission in EEOC Appeal

No. 01A03549 (July 21, 2000) remains the Commission's final decision.

There is no further right of administrative appeal from a decision of

the Commission on a request for reconsideration.

STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

__02-28-01________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.