0520110057
12-03-2010
Gerald A. Lewis, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Gerald A. Lewis,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Request No. 0520110057
Appeal No. 0120102504
Agency No. 2010-23154-FAA-05
DENIAL
Complainant timely requested reconsideration of the decision in Gerald A. Lewis v. Department of Transportation, EEOC Appeal No. 0120102504 (September 2, 2010). 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 our prior decision, the Commission affirmed that Agency's dismissal of the formal complaint for failure to state a claim. Complainant believed that he was subjected to discrimination when he learned that he would have to move from his private office to a cubicle. He was to move to a cubicle with a locking door, and had access to a conference room when he needed privacy, in order to accommodate a new upper level manager. The prior decision found that Complainant failed to show that he suffered a personal loss or harm to a term, condition or privilege of his employment as a result of the agency's action.
In his request for reconsideration, Complainant describes approximately seventeen years of prior EEO activity, including several complaints alleging discriminatory non-selections. Further, he contends without specificity that it is "impossible for me to effectively perform, and carry out the duties of a Federal Small Business Development Office without a private and secure office . . . ." Complainant asserts that there is an unoccupied room undergoing renovations which he believes is going to be offered to an individual who is "not a member of the AMQ or Aeronautical Center Organization." According to Complainant, having the Small Business Office located in a cubicle has had a "demoralizing effect on the program."
The Agency, in response, contends that the Commission properly found the complaint failed to state a claim. Complainant failed to show that "being asked to move to another office in the same city, facility, building and floor, a mere sixty-five paces away from his last office" rendered him an "aggrieved" employee. Moreover, the Agency argues that Complainant has not shown that the prior decision involved a clearly erroneously interpretation of material fact.
After reconsidering 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 Commission's scope of review on a request for reconsideration is narrow and is not merely a form of a second appeal. See Lopez v. Department of the Air Force, EEOC Appeal No. 05890749 (September 28, 1989); Regensberg v. United States Postal Service, EEOC Request No. 05900850 (September 7, 1990). The decision in EEOC Appeal No. 0120102504 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
December 3, 2010
__________________
Date
2
0520110057
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110057