05a60123
12-01-2005
Wayne A. Dozark, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense (Education Activity), Agency.
Wayne A. Dozark v. Department of Defense
05A60123
December 1, 2005
.
Wayne A. Dozark,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense
(Education Activity),
Agency.
Request No. 05A60123
Appeal No. 01A54612
Agency No. EU-FY05005
DENIAL
Wayne A. Dozark (complainant) timely requested reconsideration of
the decision in Wayne A. Dozark v. Department of Defense, EEOC Appeal
No. 01A54612 (September 22, 2005). 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) (2004).
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. In our previous decision, we found that complainant had
failed to timely contact an EEO Counselor about the alleged incident in
his complaint. When we rendered our decision, we reviewed the matter
carefully considering all of the record evidence and arguments on appeal.
In his Request, complainant states that our prior decision meets the
criteria set forth in 29 C.F.R. � 1614.405(b), but then supports his claim
by restating arguments he previously raised on appeal, again trying to
overcome the agency's dismissal of his complaint. In essence, we find
complainant's request to be actually a request for a second appeal.
However, 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, at 9-17 (rev. Nov. 9,
1999). Having reviewed our prior decision and the record based on
the standard articulated above, we conclude that our interpretation of
material fact and law is not clearly in error, and we do not find that our
previous decision overlooked any material evidence. The EEOC Regulations
are clear � a complainant must contact an EEO Counselor within 45 days
of the alleged discriminatory incident. See 29 C.F.R. � 1614.105(a)(1).
Yet, here, complainant failed to do so. The facts are clear and the
application of law is correct. Thus, we continue to stand behind that
decision and find that the arguments complainant presents in his request
fail to give us reason to reconsider the decision. As such, the decision
in EEOC Appeal No. 01A54612 remains the Commission's final 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 (P0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 1, 2005
__________________
Date