0520120608
01-24-2013
Stephen Hussey, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Stephen Hussey,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520120608
Appeal No. 0120103603
Hearing No. 430-2009-00072X
Agency No. 084789801055
DENIAL
Complainant timely requested reconsideration of the decision in Stephen Hussey v. Department of the Navy, EEOC Appeal No. 0120103603 (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).
BACKGROUND
Complainant filed an EEO complaint (2008 complaint) alleging that the Agency discriminated against him on the basis of disability (Obstructive Sleep Apnea and Shift Work Sleep Disorder) when, on or about January 16, 2008, and continuing, the Agency failed to respond to Complainant's request for reassignment to the day shift as a reasonable accommodation for his disability. In 2009, Complainant filed a second EEO complaint (2009 complaint) alleging that the Agency retaliated against him on the basis of his prior involvement in EEO activity, when on or about November 30, 2008, the Agency did not select him for the day shift position of Supervisory Security Specialist, An EEOC Administrative Judge (AJ) issued a decision without hearing with regard to the 2008 complaint and found that Complainant failed to show that he was denied a reasonable accommodation because the record evidence showed that he failed to provide the Agency with medical documentation that supported his disability claim. The AJ concluded that even if Complainant had complied with the Agency's requests for medical documentation the record showed that Complainant had voluntarily agreed to be reassigned as a security guard during the day shift. Accordingly, the AJ found that Complainant had been accommodated.
Further, the AJ held a hearing regarding the 2009 complaint. The AJ found that at the time of the vacancy for the Alpha Branch Supervisory Security Specialist, Complainant was already working on the day shift in a different position. The AJ found that both Complainant and another employee were long standing supervisors and fully qualified for the Alpha Branch Supervisory Security Specialist position. Further the AJ found that the evidence supported the Agency's legitimate, non-discriminatory reason for selecting the other employee for the vacant position (i.e., that he had superior leadership qualities and because his position was about to be downgraded) over Complainant. The record shows that the other employee received better appraisals during the relevant time-frame than Complainant in the area of supervisory leadership skills. The record also showed that when a non-supervisory position became open, the Agency re-promoted Complainant to the higher graded position of Security Technician, YB-02. The AJ found that Complainant failed to show that he had been subjected to discrimination as to both complaints. The Agency failed to issue a final order and as such the AJ's decision became the final decision. The Commission affirmed the finding of no discrimination.
CONTENTIONS FOR REQUEST FOR RECONSIDERATION
Among arguments previously made in the appellate decision, Complainant contends that the AJ erred when she failed to find that Complainant did not show that he was a qualified individual with a disability, that he had not provided medical documentation, that the Agency took a long time to respond to Complainant's request which was unacceptable, and that the Agency provided him an accommodation that was not a Supervisory position. Further, Complainant contends that but for reprisal, he should have been placed in a vacant Supervisory position on the day shift. Complainant contends that he was subjected to discrimination.
In response, the Agency requests that the AJ's decision be affirmed.
ANALYSIS AND FINDINGS
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. 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. Accordingly, the decision in EEOC Appeal No. 0120103603 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
_1/24/13_________________
Date
2
0520120608
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120608