0520100094
01-22-2010
Ira W. Blue, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Ira W. Blue,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520100094
Appeal No. 0120080386
Agency No. 056588601840
DENIAL
Complainant timely requested reconsideration of the decision in Ira
W. Blue v. Department of the Navy, EEOC Appeal No. 0120080386 (September
30, 2008). 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 his formal complaint, complainant presented eight claims of employment
discrimination. The agency dismissed all eight claims on procedural
grounds. On appeal, the Commission affirmed the dismissal of six claims
and remanded two claims, (a) and (e), back to the agency for further
processing. In these respective claims, complainant alleged that he
was discriminated against on the basis of reprisal for prior protected
EEO activity when: (a) "on an unspecified date, the former EEO Officer
failed to follow equal pay and compensation regulations and guidance
in regard to the work that complainant performed in his position as an
Engineering Technician, in Code 6.3.1"; and "(e) on an unspecified date,
the EEO Officer, Senior Legal Counsel and senior management officials
limited and restricted his requests to work credit hours and denied his
requests for a desk audit, a consistency review and an investigation
into criminal acts."
Upon review of the remanded matters, the administrative judge
(AJ) dismissed claims (a) and (e) on the grounds that complainant's
"claims had previously been decided by the agency and/or were untimely"
pursuant to 29 C.F.R. � 1614.109(b), 29 C.F.R. � 1614.107(a)(2), and 29
C.F.R. � 1614.107(a)(1) respectively. In EEOC Appeal No. 0120080386,
the Commission affirmed the AJ's procedural dismissal on the grounds
that: (1) the preponderance of the evidence in the record indicated
that these claims had previously been addressed by the agency and were
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1); and (2), the
preponderance of the evidence in the record indicated that claims (a) and
(e) were not brought before a counselor within the required 45-day period
and were properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).
In his request for reconsideration, complainant alleges that the
Commission's decision was not based on a full review of the record.
Complainant further alleges that the AJ's decision was not based on
information presented in his formal complaint and that he was not
notified of his right to a hearing before an AJ. Finally, complainant
expresses general concerns about the EEO process. To this end, complainant
requests a hearing and investigation of the agency's EEO policies. In its
response to complainant's request, the agency contends that complainant
has not offered evidence showing that the appellate decision was based
on a clearly erroneous interpretation of law or fact. Accordingly,
the agency requests that the Commission deny complainant's request for
reconsideration.
In addressing complainant's contentions, we find that complainant has not
presented evidence or argument to show that the Commission's previous
decision erred in affirming the AJ's dismissal of his claims. We note
that complainant's contentions, as made in his request, are directed to
the merits of his complaint. However, we find that these contentions
are misplaced, as the appellate decision addressed claims (a) and (e)
on procedural grounds. Moreover, 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
(rev. Nov. 9, 1999), at 9-17. This Commission carefully considered all of
the evidence in the record at the time it rendered the previous decision,
and complainant has offered no persuasive reason why the decision should
be reconsidered now.
With respect to complainant's contentions regarding the EEO process,
we direct complainant to EEOC Management Directive 110 (as revised
Nov. 9, 1999) at pages 5-25 and 5-26, which provide, in relevant part,
that dissatisfaction with the EEO process must be raised within the
underlying complaint, not as a new complaint. Such a claim is considered
to be a "spin-off" of a prior complaint. EEOC Management Directive 110
specifically provides that concerns regarding improper EEO processing
raised after a decision will be accepted by the agency, the Administrative
Judge, or OFO.
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 decision in EEOC Appeal No. 0120082304 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 (P0408)
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 (Z1008)
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
______1/22/10____________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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