0520120411
10-19-2012
Franklin J. Smithson, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Franklin J. Smithson,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Request No. 0520120411
Appeal No. 0120120920
Agency No. HQ080736SSA
DENIAL
Complainant timely requested reconsideration of the decision in Franklin J. Smithson v. Social Security Administration, EEOC Appeal No. 0120120920 (April 20, 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).
In the underlying complaint, Complainant alleged he was discriminated against based on his race, age, sex, and disability with regard to 16 issues involving a request for a reasonable accommodation, multiple nonselections, and a suspension. The Agency issued a Final Agency Decision finding that Complainant failed to demonstrate that he was discriminated against as alleged. Complainant appealed the FAD to the Commission. In Smithson v. Social Security Administration, EEOC Appeal No. 0120120920 (April 20, 2012), the Commission affirmed the Agency's finding that Complainant was not discriminated against as alleged. Complainant requests that the Commission reconsider its decision in the appellate case.
In his request for reconsideration, Complainant argues, among other things, that the decision contains erroneous interpretations of material fact. Specifically, Complainant argues that the decision mistakenly states that his age was 40 at the time of the incident; the decision took into consideration the wrong building and the layout of the office regarding his request for reasonable accommodation; S1 provided inaccurate testimony regarding the change in the organization at the time of the incidents; the appellate decision failed to make any analysis or findings on the nonselections; and the appellate decision did not make a finding on the claim alleging discrimination regarding the suspension. Complainant also reiterates arguments made previously on appeal regarding the fact that S1's EEO status is mistakenly listed in the Report of Investigation (ROI) as "unknown," and that the ROI was not completed in a timely manner. The Agency argues that any new evidence presented by Complainant in his request should not be considered because he did not demonstrate that it should have been included in the record. The Agency further argues that Complainant's contentions are without merit and the Commission should deny the request.
Preliminarily, the Commission does not accept new evidence submitted for the first time in a request for reconsideration without some indication that the evidence was not readily available before the appellate decision was issued. As noted above, Complainant provided no such indication. Andrews v. Dep't of the Navy, EEOC Request No. 05900215 (May 3, 1990) (a request to reconsider is not a means to submit evidence that should have been provided before the Commission's previous decision was issued). Accordingly, we decline to address Complainant's contentions that the appellate decision considered the wrong building and the evidence Complainant attempts to submit regarding that issue.
Although the appellate decision erroneously stated that Complainant's age was 40 at the time of the incidents, we find that this is not an erroneous interpretation of a material fact. Nothing in the appellate decision shows that this typographic error was material to the determination that Complainant was not discriminated against based on age. Similarly, we find that Complainant has not demonstrated that any omission regarding the nature of the organization was material to the determination of whether Complainant was discriminated against as alleged. With regard to Complainant's contentions that the Commission failed to specifically address the nonselections and the suspension claim, we find that decision clearly states that Complainant failed to demonstrate that he was discriminated against on these matters.
Further, we note that with regard to contentions previously articulated on appeal, 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), 9-17 (November 9, 1999). 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. The Commission has long held that it is improper to simply reargue the facts in a reconsideration request. See Bartlomain v. USPS, EEOC Request No. 05910436 (October 10, 1991). Accordingly, we find that Complainant failed to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law or will have a substantial impact on the policies, practices, or operations of the agency
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. 0120120920 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
___10/19/12_______________
Date
2
0520120411
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120411