05980725
12-08-2000
John Schomach, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
John Schomach v. Department of the Army
05980725
December 8, 2000
.
John Schomach,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Request No. 05980725
Appeal No. 01963197
Agency No. 93-08-0086
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in John
Schomach v. Department of the Army, EEOC Appeal No. 01963197 (March
24, 1998).<1> 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 original complaint, complainant alleged that he was discriminated
against on the basis of age (60) when he was not repromoted after
being downgraded from a GS-11 grade to a GS-9 grade as the result of
a reduction-in-force (RIF) in 1977. Although complainant was entitled
to receive noncompetitive consideration for repromotion to his former
grade, he testified that he never applied for a position but that
a position should have been created for him. Yet creation of such
a position would have had to have been justified and then opened to
competition. In addition, on three separate occasions, complainant's
second-line supervisor requested that complainant be promoted to the
GS-11 grade, but a 1990 desk audit found that complainant's duties did
not justify an upgrade. Furthermore, the agency found that complainant
did not establish a prima facie case of age discrimination, as he failed
to present a similarly situated employee not in his protected group who
was treated more favorably, or show that, but for his age, he would have
been repromoted. Accordingly, the agency issued a final decision (FAD)
finding no discrimination, and on appeal, the Commission affirmed the
FAD.
In his request for reconsideration, complainant asserts that the statement
that he did not apply for promotions is incorrect, and encloses two
forms showing that he did, in fact, apply for two promotions in 1985.
He also encloses the Commanding Officer's Policy Statement on priority
placement consideration, which provides evidence that complainant should
have received special priority promotion consideration and so been
repromoted. In addition, complainant includes two agency commendations
and one performance evaluation in which he is rated �exceptional,�
as further evidence that he deserves repromotion to GS-11. Finally,
complainant encloses a copy of an E-mail �Harassment Alert,� as evidence
that it was impossible for him to be repromoted because of the existing
hostile work environment. The agency did not reply to complainant's
request for reconsideration.
The Commission evaluates the new evidence submitted by complainant as
follows: As to the two promotions for which complainant applied in 1985,
we note that according to EEOC Regulation � 1614.105(a)(1), an aggrieved
person must contact the EEO Counselor within 45 days of the personnel
action alleged to be discriminatory. As complainant would have learned
of his nonselection for either promotion within a year at most of his
applying, but did not timely contact an EEO Counselor about his alleged
discriminatory nonpromotion, we find this evidence to be untimely
proffered on the issue of his failure to be repromoted on account of
his age. As to the policy statement on priority placement consideration,
we find it inconclusive evidence that management did not give first
consideration to complainant as a repromotion eligible when he applied
for the two positions in 1985, since a suitable position for him to be
repromoted into might not have existed at that time, given the RIF which
the agency facility had undergone in 1977. Moreover, as complainant did
not apply for any vacancies, other than the two mentioned above, he could
not have received priority placement consideration in the first place.
Finally, as to the �Harassment Alert,� we find this irrelevant to the
issue of whether complainant received priority placement consideration
for the two positions for which he did apply in 1985, as the message
was not sent until 1993, almost 8 years later, and could have reflected
different working conditions.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission therefore 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. 01963197 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
December 8, 2000
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.