05A21148
11-07-2002
Gerald F. Martin, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Gerald F. Martin v. Department of the Air Force
05A21148
November 7, 2002
.
Gerald F. Martin,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Request No. 05A21148
Appeal No. 01A11579
Agency No. AL900010196
Hearing No. 370-98-X2258
DENIAL OF REQUEST FOR RECONSIDERATION
Gerald F. Martin (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Gerald F. Martin v. Department of the Air Force, EEOC
Appeal No. 01A11579 (July 24, 2002). EEOC Regulations provide that the
Commission may, in its discretion, 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 his underlying complaint, complainant alleged he was discriminated
against on the bases of disability (legal blindness) and reprisal for
prior EEO activity in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,
and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq., when he was allegedly constructively discharged
for his position, and the agency failed to provide him with a requested
reasonable accommodation. The final agency decision (FAD) found no
discrimination. The Commission affirmed the FAD, concurring in the
finding that, with respect to the issue of constructive discharge,
complainant failed to show that the agency's proffered reasons for
its actions were mere pretext to mask discriminatory animus, or that
the conditions to which he was subjected were so difficult that a
reasonable person would have been compelled to resign. As to the issue
of alleged denial of reasonable accommodation, we found that complainant
had not requested a reasonable accommodation as contemplated under the
Rehabilitation Act.
In his lengthy request for reconsideration, complainant reiterates
numerous contentions made below, and alleges that the appeal
decision failed to properly address the facts of the case, contained
misinterpretations of factual evidence, and failed to address the basis
of reprisal discrimination. The Commission finds that the majority of
complainant's contentions were fully addressed in the appeal decision, and
after a careful review of the record, we find that the prior decision does
not contain any clearly erroneous interpretations of material fact or law.
We do, however, agree with complainant's contention that the prior
decision did not explicitly address his claim of reprisal, although
we do not agree that this omission constitutes a clearly erroneously
interpretation of material law or fact justifying reconsideration of
the prior decision. In the underlying appeal, the Commission found that
complainant failed to show that the agency's legitimate, nondiscriminatory
reasons for its actions were mere pretext for unlawful discrimination
based on disability. Under Hochstadt v. Worcester Foundation for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to reprisal
cases), and Prewitt v. United States Postal Service, 662 F.2d 292,
310 (5th Cir. 1981), complainant's claim of discrimination based on
reprisal would be analyzed using the same standards as those applied to
his claim of discrimination based on disability. Accordingly, the prior
decision properly determined that complainant failed to establish that
the agency's articulated reasons were a pretext to mask discrimination,
whether based on disability or reprisal.
Thus, after a review of complainant's request for reconsideration, 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. 01A11579 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this 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
November 7, 2002
__________________
Date