0520100599
12-17-2010
Robert J. Harpster, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Robert J. Harpster,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Request No. 0520100599
Appeal No. 0120083377
Hearing No. 520-2006-00079X
Agency No. TTB-05-0517-M
DENIAL
Complainant timely requested reconsideration of the decision in Robert
J. Harpster v. Department of the Treasury, EEOC Appeal No. 0120083377
(July 6, 2010). 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, the Commission dismissed Complainant's attempt
to appeal the final agency decision (FAD) to the Commission, based on
our lack of jurisdiction over the complaint. We found that the Agency
had properly issued a FAD, pursuant to the dismissal order of an EEOC
Administrative Judge (AJ), which gave Complainant appeal rights to
the Merit Systems Protection Board (MSPB) in the matter of his mixed
case complaint. Our previous decision also affirmed the determination
of the Agency that Complainant had not been improperly denied official
time for working on his EEO complaint.
In his request for reconsideration, Complainant argued that the Commission
did not lack jurisdiction over his mixed case complaint, in that his
hostile work environment claim had become inextricably intertwined with
his claim of constructive discharge and should remain in the EEO process.
He also disputed that our decision on his official time request was
correctly decided.
In response to Complainant's request for reconsideration, the Agency
submitted a brief in which it argued that prior case precedent supported
our determination that Complainant's mixed case complaint should have
been appealed to the MSPB, as per the rights given by the Agency to
Complainant in the FAD. It also posited that its determination on the
amount of official time granted to Complainant had been correctly decided
that our affirmance of this determination should stand.
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. Although Complainant disagrees
with our previous decision, we note that he had been given notice by
the AJ and the Agency that his case was more properly appealed to the
MSPB. Although he might have preferred to remain in the EEO process,
Complainant's preference cannot supercede what the regulations dictate.
See 29 C.F.R. � 1614.302. Were the MSPB to determine that it did not
have jurisdiction, it would remand the complaint for further processing
as an unmixed case. That is not for the Commission to decide. We also
find that the determinations regarding the granting of official time to
work on his EEO complaint were correct.
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. 0120083377 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
December 17, 2010
Date
2
0520100599
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520100599