0520120391
06-21-2013
Johnny W. Lovett, Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Johnny W. Lovett,
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Request No. 0520120391
Appeal No. 0120102682
Agency No. DeCA-00077-2008
DENIAL
Complainant requested reconsideration of the decision in Johnny W. Lovett v. Department of Defense, EEOC Appeal No. 0120102682 (December 20, 2011). 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 our previous decision, we modified the Agency's award compensatory damages.1 We ordered the Agency to pay Complainant $50,000 in non-pecuniary damages, $3,962 in pecuniary damages, and calculate his loss of future earning capacity during a designated period. We also ordered the Agency to pay Complainant attorney fees.
In his request for reconsideration, Complainant through his attorney, contends that the Agency has denied his request for attorney's fees on the grounds that he did not submit an affidavit to support his fee request. We note that in Johnny W. Lovett v. Department of Defense, EEOC Appeal No. 0120122662 (May 15, 2013), after this request had been docketed, we addressed the Agency's denial of Complainant's request for attorney's fees. Therein, we noted that Complainant's attorney cured his fee petition for attorney's fees by submitting the missing affidavit. Based upon our review of the record, we found that Complainant's attorney was entitled to $200 an hour for 28 hours of work, totaling $5,600. We ordered the Agency to pay $5,600 in attorney's fees to Complainant.
We note 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 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Neither criteria has been met here.
After reviewing 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. 0120102682 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 (P0610)
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 (Z0610)
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
June 21, 2013
Date
1 In Lovett v. Department of Defense (Defense Commissary Agency), EEOC Appeal No. 0120092291 (Nov. 17, 2009), we found that the Agency violated the Rehabilitation Act when it did not select Complainant for the position of Store Director at the Arnold Air Force Base Commissary in Tennessee. We ordered the Agency to pay back pay and conduct a supplemental investigation into Complainant's entitlement to compensatory damages and issue a final decision thereafter.
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0520120391
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520120391