0520120543
01-16-2013
Donald N. Hester, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
Donald N. Hester,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Request No. 0520120543
Appeal No. 0120110884
Hearing No. 550-2010-00167X
Agency No. OS-09-0296
DENIAL
Complainant timely requested reconsideration of the decision in Donald N. Hester v. Department of the Interior, EEOC Appeal No. 0120110884 (July 11, 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).
The previous decision affirmed the Agency's implementation of the EEOC Administrative Judge's (AJ's) decision issued without a hearing, which found that Complainant had not established that he was discriminated against on the bases of his race, color, and age when he was not hired for five positions for which he had applied at the Agency's Office of the Special Trustee for American Indians (OST). The decision found that the AJ properly issued a decision without a hearing. It also found that the Agency had not violated the federal anti-discrimination statues because the Agency's actions were due to the mandate of the Indian Preference Act (IPA), which accords employment preferences to Indians in the Indian Service, irrespective of Title VII. The IPA dates to 1934, has been amended at various times since, and was the subject of Morton v. Mancari, 417 U.S. 535 (1974), which held that the application of the IPA does not violate Title VII's proscription against racial discrimination.
In his request for reconsideration, Complainant argued that the OST did not fall under the Indian preference exemption in the IPA, and that the Agency had improperly expanded the practice to a part of the Agency that was not provided for in the statute. The Agency did not submit any statement or brief in opposition to Complainant's request for reconsideration.
We find that Complainant's request for reconsideration fails to show that our previous decision involved a clearly erroneous interpretation of material fact or law, or that it would have a substantial impact on the policies, practices or operations of the Agency. We note that a "request for reconsideration is not a second appeal to the Commission." E.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007); EEO Management Directive for Part 1614 (EEO MD-110), Chap. 9, �VII.A. (Nov. 9, 1999). Complainant has not shown that the previous decision was erroneous in its conclusion that the Agency's actions were due to the mandate of the IPA, and not unlawful discrimination. The arguments which Complainant advanced in his request for reconsideration were considered by the AJ, who addressed the issue in her decision. We do not find that the AJ's decision was erroneous, nor was the Agency's implementation of the AJ's decision.
Therefore, 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. 0120110884 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
January 16, 2013
Date
2
0520120543
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120543