0520130318
08-13-2013
Lance E. Elliott, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Lance E. Elliott,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Request No. 0520130318
Appeal No. 0120121444
Agency No. HS10ICE002181
DENIAL
Complainant timely requested reconsideration of the decision in Lance E. Elliott v. Department of Homeland Security, EEOC Appeal No. 0120121444 (February 13, 2013). 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 the appellate decision, the Commission found that the EEOC Administrative Judge (AJ) properly issued a decision without a hearing. Further, the Commission found that Complainant failed to establish that he was subjected to a hostile work environment based on age and reprisal for prior EEO activity as alleged. Specifically, the Commission found that Complainant failed to show that the incidents alleged were sufficiently severe or pervasive to create a hostile work environment. Additionally, the Commission found that Complainant failed to establish that the Agency's actions were motivated by discriminatory or retaliatory animus. Complainant requests that the Commission reconsider the appellate decision.
In his request for reconsideration, Complainant withdraws his age discrimination allegations by stating that the evidence he presented did not warrant a hearing. However, Complainant argues that a genuine issue of material fact existed with regard to his allegation that the Agency abolished his position in retaliation for filling an EEO complaint. Further, Complainant argues that the AJ erred when he did not issue sanctions against the Agency for failure to follow the AJ's orders.
We note that Complainant's arguments in his request for reconsideration are similar to those he raised before the Commission on appeal. 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. A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or will have a substantial impact on the policies, practices, or operations of the Agency. Here, we find that the Complainant has not met his burden.
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. 0120121444 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
__8/13/13________________
Date
2
0520130318
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520130318