0520110416
10-07-2011
Richard M. Alvarado, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Richard M. Alvarado,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Request No. 0520110416
Appeal No. 0120092370
Hearing No. 451-2009-00003X
Agency No. DECA-00016-2007
DENIAL
Complainant timely requested reconsideration of the decision in Richard
M. Alvarado v. Department of Defense, EEOC Appeal No. 0120092370 (March
18, 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 the previous decision, the Commission affirmed the Agency’s
implementation of an EEOC Administrative Judge’s decision, following
a hearing, finding that Complainant was not discriminated against or
harassed on the bases of disability or reprisal when he was allegedly
subjected to a hostile work environment by his former supervisor.
We affirmed the AJ’s finding that the incidents which occurred between
March and May 2007 were insufficiently severe or pervasive so as to
create a legally hostile working environment. We noted that the record
established that Complainant and his former supervisor did not get along,
and that the former supervisor “was not known for a polished soft-spoken
demeanor.” However, we found that the behavior of the former supervisor
was not frequent or severe enough to be considered abusive.
In his request for reconsideration, Complainant argues that the AJ and the
previous decision did not fully consider evidence in the record consisting
of the affidavit of Complainant’s current supervisor, who testified
regarding the former supervisor’s attitude towards Complainant.
The Agency did not respond to Complainant’s request for reconsideration.
We find that Complainant’s request for reconsideration fails to show
that our previous decision involved a clearly erroneous interpretation of
fact or law, or that it would have a substantial impact on the policies,
practices or operations of the Agency. We note that Complainant did
not advance these arguments about testimony that potentially should have
been given greater weight in his initial appeal. We find that the issues
as they were accepted by the Agency, and not contested by Complainant,
were properly analyzed by the AJ and by our previous decision.
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) (Nov. 9, 1999),
at 9-17. This Commission carefully considered all of the record evidence
at the time it rendered the initial decision in question. The Commission
declines to consider these issues where they are being raised for the
first time in a request for reconsideration.
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. 0120092370 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
October 7, 2011
Date
2
0520110416
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110416