0520120600
02-08-2013
Erasmo Hernandez, Jr., Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Erasmo Hernandez, Jr.,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520120600
Appeal No. 0120121503
Agency No. 12031803667
DENIAL
Complainant timely requested reconsideration of the decision in Erasmo Hernandez, Jr. v. Department of the Navy, EEOC Appeal No. 0120121503 (July 12, 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
Complainant alleged that the Agency subjected him to discrimination on the basis of national origin (Mexican) when he was subjected to a number of work place incidents that occurred from March 22, 2011, to June 16, 2011. The Agency dismissed Complainant's claims for untimely EEO Counselor contact and failure to state a claim. The Commission affirmed the dismissal of claims (a) - (f) for untimely EEO Counselor contact as Complainant did not contact an EEO Counselor until August 25, 2011. The Commission reversed the Agency's finding regarding claim (h).1 The Commission found that claim (h stated a claim as it involved an Agency action that was clearly adverse and would dissuade a reasonable employee from making or supporting a charge of discrimination. The Commission remanded the claim for investigation.
REQUEST FOR RECONSIDERATION
In his request for reconsideration, Complainant contends that he did not believe that he was being discriminated against as he had such strong beliefs in the principals and ideals of the Marine Corps. He also argues that his contact with the Human Resources department on March 31st should be considered towards the issue of timeliness.
ANALYSIS AND FINDINGS
We remind Complainant 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) (rev. Nov. 9, 1999), at 9-17. A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Here, we find no evidence that Complainant has met the criteria for reconsideration. As noted by the previous decision, the record reveals that Complainant had constructive notice regarding the EEO process through Supervisory EEO training. Moreover, Complainant admits that it was his own beliefs and background experiences that kept him from initially pursuing what he felt to be discrimination. 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. Accordingly, the decision in EEOC Appeal No. 0120121503 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 ordered to process the remanded claim (h) in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes mal. 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 the 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. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
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 (Q0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
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
____2/8/13______________
Date
1 (a) On March 22, 2011, management sent a reorganization e-mail to senior staff which excluded him; (b) On March 30. 2011, his supervisor issued him a notice of "Change of Duties" temporarily detailing him from duties as Service Desk Manager to unallocated duties pending the outcome of an administrative investigation and that he was instructed to continue working in Building 505 until [receipt of] further instructions issued by management; (c) On March 31. 2011, he contacted the Agency's Human Resources Specialist (HRS) and was purportedly given bad advice and a misrepresentation of EEO law; (d) On April 11, 2011, he requested a hardcopy explaining why his security clearance had been suspended. A copy of the Suspension of Access to Classified Information for Cause dated April 11, 2011, and Local Suspension of Security Access dated February 2, 2011. were provided; (e) On May 4, 2011, management stated that he would have to pay for future testing/certifications upfront and would be reimbursed after passing the testing/certifications; (f) On June 16. 2011, during a conversation, his supervisor conveyed that he did not trust him; both he and his supervisor then agreed to a telework program for Complainant's current duties; (g) On August 11, 2011, he obtained a copy of the Command Investigation, dated August 10, 2011, of which the goal of Marine Corps Base Hawaii is to have him removed from employment; and in reprisal for having filed a formal EEO complaint in this matter; and h) On November 28, 2011, his access to the shared drive was removed.
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0520120600
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520120600