0520080050
11-15-2007
Harry R. Malan, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Harry R. Malan,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Request No. 0520080050
Appeal No. 0120073329
Agency No. 8L1M03131
DENIAL
Complainant timely requested reconsideration of the decision in Harry
R. Malan v. Department of the Air Force, EEOC Appeal No. 0120073329
(September 7, 2007). 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).
Complainant filed a formal complaint alleging that he was discriminated
against on the bases of disability (back, high blood pressure, diabetes,
post-traumatic stress disorder) and in reprisal for prior protected EEO
activity when:
1. on July 27, 2003, management required complainant to change his tour of
duty from a compressed schedule (5-4-9) to a straight 8-hour day (5-8);
2. on August 8, 2003, management ignored an agreement with the union to
restore his 5-4-9 schedule while the new schedule negotiations were in
progress;
3. on September 9, 2003, management issued him a low Civilian Progress
Review;
4. on October 8, 2003, management gave him a new position description that
changed his duties and responsibilities by deleting a skills code; and
5. from August 2003 through November 18, 2003, management purposefully
undermanned the Control Center shift, thereby creating a hostile work
environment.
The AJ assigned to the case issued a decision without a hearing, and the
agency then implemented that decision. Complainant appealed, and the
prior decision affirmed. 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. Complainant failed to provide argument
or evidence that would establish that the prior decision involved a
clearly erroneous interpretation of material law or fact. The decision
in EEOC Appeal No. 0120073329 remains the Commission's final 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 (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
11/15/07
Date
2
0520080050
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0520080050