05a60167
11-30-2005
John MacIvor, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
John MacIvor v. Department of Agriculture
05A60167
11-30-05
.
John MacIvor,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Request No. 05A60167
Appeal No. 01A54546
Agency No. CR-040107
Hearing No. 350-2004-00180X
DENIAL
John MacIvor (complainant) timely requested reconsideration of the
decision in John MacIvor v. Department of Agriculture, EEOC Appeal
No. 01A54546 (September 22, 2005). 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. 29 C.F.R. � 1614.405(b).
In the underlying case, complainant alleged that he was discriminated
against in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. � 2000e et seq. Complainant filed a formal
complaint and requested a hearing before an EEOC Administrative Judge
(AJ). The AJ issued a decision without a hearing granting the agency's
motion to dismiss the complaint. The AJ found that complainant failed
to contact an EEO Counselor within forty-five (45) days, as required
by our regulations. 29 C.F.R. � 1614.105(a)(1). Complainant appealed
the AJ's decision to the Commission. The Commission affirmed the AJ's
dismissal of the complaint for untimely EEO Counselor contact.
In his request for reconsideration, complainant reiterates arguments
he made on appeal. However, 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, at
9-17 (rev. November 9, 1999). We find that complainant's argument fails
to meet the criteria of 29 C.F.R. � 1614.405(b). After reconsidering
the previous decision and the entire record, it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 01A54546
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
_____11-30-05_____________
Date