0520120592
01-31-2013
Michael J. Gundrum, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Michael J. Gundrum,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520120592
Appeal No. 0120103354
Hearing No. 480-2009-00242X
Agency No. DON-08-00243-01911
DENIAL
Complainant timely requested reconsideration of the decision in Michael J. Gundrum v. Department of the Navy, EEOC Appeal No. 0120103354 (July 20, 2012). 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 affirmed the EEO Administrative Judge's (AJ) decision, issued after a hearing, finding that it was supported by substantial evidence in the record. We found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. We noted that Complainant was instructed that he could not meet the Commanding General because Agency policies required him to first bring his concerns through his chain-of-command. We noted that Complainant arrived at Commanding General's office unannounced without allowing those in his chain-of-command the opportunity to resolve the situation. We noted that Complainant was subsequently suspended for inappropriate conduct, using insulting and obscene language, and failure to follow supervisory instructions. We found that the AJ's determination that Complainant failed to establish pretext was supported by substantial evidence in the record.
In his request for reconsideration, Complainant, in pertinent part, contends that the Agency subjected him to reprisal because he requested reasonable accommodation for his disability. Complainant contends that he did not act inappropriately and just simply asked how he could arrange a meeting with the Commanding General. Complainant contends that he left before the military police were called and did not refuse to leave.
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; 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. Complainant has not done so here. We determine the previous decision did not clearly err in finding substantial evidence to support the AJ's finding that Complainant could not establish pretext. Complainant does not dispute that he requested a meeting with the Commanding General or that the military police were called.
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. 0120103354 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
January 31, 2013
Date
2
0520120592
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120592