0520110639
10-27-2011
Lawrence A. Dash, Complainant, v. Gary Locke, Secretary, Department of Commerce (Bureau of the Census), Agency.
Lawrence A. Dash,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Request No. 0520110639
Appeal No. 0120112677
Agency No. 11-63-00121D
DENIAL
Complainant timely requested reconsideration of the decision in Lawrence
A. Dash v. Department of Commerce, EEOC Appeal No. 0120112677 (July
28, 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).
BACKGROUND
The facts and procedural background are set forth in the previous
decision and are incorporated herein by reference. We note the following
salient facts: Complainant filed a complaint alleging that he was
terminated on May 20, 2010, due to retaliation (“I formally criticized
the training.”). Complainant claimed that his Team Leader terminated
him in “retribution for speaking his mind.” Complainant also claimed
that his termination “violated principles of fundamental fairness.”
Id. Complainant maintained that he believed he was terminated because
the Team Leader found his comment, i.e., his referring to a woman as a
“fat person,” disrespectful. The Agency dismissed Complainant’s
complaint on the grounds that he failed to state a claim by not setting
forth an enumerated basis of discrimination. Furthermore, the Agency
found that Complainant filed his complaint in an untimely manner.
The Agency, in this regard, noted that although Complainant became
aware of the alleged discrimination on May 5, 2010, he did not seek EEO
counseling until February 3, 2011. The previous decision affirmed the
Agency’s dismissal on the grounds that Complainant failed to provide
any EEO protected basis for the alleged discrimination.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant argues that he did
“hypothesize” that he was terminated in reprisal because “[I]n
the demonstrated absence of any other substantiated charge, what else
can be surmised.”
The Agency argues that Complainant’s reconsideration request should
be denied because he (1) failed to timely seek EEO counseling and (2)
Agency documentation and record indicate that Complainant never engaged
in any prior protected EEO activity, nor did he maintain that he ever
engaged in prior protected EEO activity.
DETERMINATION
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 (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 (2) will have a substantial
impact on the policies, practices, or operations of the Agency.
Here, we find no evidence that Complainant has met the criteria for
reconsideration. Complainant did not provide a basis of discrimination
in his complaint. To the extent that he “hypothesized” that reprisal
may have played a role, we note that he provided no evidence that he
ever engaged in protected EEO activity. Merely speaking his mind about
training is not sufficient to bring him within the purview of the statutes
enforced by the Commission.
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. 0120112677 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
___10/27/11_______________
Date
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0520110639
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520110639