0520110287
04-13-2011
Sidney L. Walker, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Sidney L. Walker,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520110287
Appeal No. 0120101904
Agency Nos. DON 07-40085-01492
DENIAL
The agency requested reconsideration of the decision in Sidney L. Walker
v. Department of the Navy, EEOC Appeal No. 0120101904 (January 20, 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
In the underlying complaint, Complainant alleged discrimination on the
bases of race (African-American) and reprisal for prior protected EEO
activity when:
1. On April 25, 2007, his supervisory duties were suspended pending
the outcome of a Pre-Action Investigation;
2. Since May 31, 2006, he has not received a Performance Appraisal;
3. On July 16, 2007, he was issued a Notice of Proposed Suspension;
a. on July 3, 2007 a Pre-Action Investigation was initiated;
4. On November 29, 2007, he was issued a Notice of Decision on
Proposed Suspension which implemented a 30-day suspension beginning
January 3, 2008;
5. Since May 2005 (and most recently November 27, 2007), he has
not been given the opportunity to act as the Maintenance Supervisor
while several similarly situated White employees have been given that
opportunity;
6. In November 2006, management returned 230 hours of donated leave
and did not allow him to use it;
7. On February 5, 2008, he was reassigned to the Utility Department.
In her decision issued without a hearing, the AJ found the material facts
were not in dispute and that discrimination did not occur as alleged.
In our previous decision, the Commission vacated the Agency's final
order, which fully implemented the decision of the Administrative Judge
(AJ). Walker v. U.S. Dep't of the Navy, EEOC Appeal No. 0120101904.
The Commission ordered the Agency to contact the hearings unit of the
appropriate field office to schedule a hearing on Complainant's complaint.
Id.
Additionally, in our previous decision, the Commission observed that
the AJ had, in her decision, denied a motion brought by Complainant to
amend his complaint (then pending before the AJ), to include a recently
filed complaint of discriminatory non-selection (Agency case number DON
09-40085-00931). Id. The Commission granted Complainant's request that
this claim (non-selection) be included with the prior complaint, noting
that, "for the sake of judicial economy, we grant Complainant's request
to consolidate his non-selection complaint with this pending matter since
the non-selection complaint has completed the Agency's investigation
stage and is ready to move forward in the hearing stage." Id.
On request for reconsideration, the Agency states that the Commission
cannot consolidate a case that has already been dismissed pursuant
to the Commission's own regulations and that the non-selection claim
involves different time, witnesses, subject matter, and responsible
management officials. The Agency notes that following the completion
of investigation, when Complainant failed to request either a hearing
or a final decision from the Agency after notice of his rights issued
on March 29, 2010, the Agency issued a final decision in case number
DON 09-40085-00931 on July 19, 2010.
ANALYSIS AND FINDINGS
Upon review, we note that the Commission's previous decision considered
Complainant's argument that the AJ erred in denying his motion to
amend his complaint under the circumstances. See Brief For Appellant,
April 28, 2010, EEOC Appeal No. 0120101904, at 45. We find that the
Agency was aware of Complainant's challenge to the AJ's denial of his
motion to amend, (to add the claim in DON 09-40085-00931), contained in
Complainant's appeal of the Agency's final decision in DON 07-40085-01492.
Indeed, the Agency acknowledged and addressed Complainant's challenge in
its brief opposing Complainant's appeal. Agency's Reply to Complainant's
Brief on Appeal, May 18, 2010, EEOC Appeal No. 0120101904, at 9. We find
the Agency continued the processing of DON 09-40085-00931 with the risk
that the Commission's decision in DON 07-40085-01492 would serve to
nullify the Agency's final decision, rendered as the Agency indicates
in its request, during the pendency of EEOC Appeal No. 0120101904.
Agency's Request for Reconsideration, February 11, 2011, at 2. Therefore,
we find no error in our prior decision and we find that Agency should
still consolidate the non-selection complaint with the pending matter.
CONCLUSION
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. 0120101904 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request. The Agency
shall comply with the Order as set forth herein.
ORDER
The Agency shall submit to the Hearings Unit of the appropriate EEOC
field office the request for a hearing within fifteen (15) calendar
days of the date this decision becomes final. The Agency is directed
to submit a copy of the complaint file to the EEOC Hearings Unit within
fifteen (15) calendar days of the date this decision becomes final. The
Agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the Hearings Unit. Thereafter, the Administrative Judge shall issue a
decision on the complaint in accordance with 29 C.F.R. �1614.109 and the
Agency shall issue a final action in accordance with 29 C.F.R. �1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The Agency's report must contain supporting documentation,
and the Agency must send a copy of all submissions to the Complainant.
If the Agency does not comply with the Commission's order, the Complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The Complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the Complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the Agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
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
April 13, 2011
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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