0520100290
04-29-2010
Wayne B. Upshaw, Complainant, v. Thomas Hill Moore, Chair, Consumer Product Safety Commission, Agency.
Wayne B. Upshaw,
Complainant,
v.
Thomas Hill Moore,
Chair,
Consumer Product Safety Commission,
Agency.
Request No. 0520100290
Appeal No. 0120101281
DENIAL
The agency requested reconsideration of the decision in Wayne B. Upshaw
v. Consumer Product Safety Commission, EEOC Appeal No. 0120101281 (March
3, 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 its request for reconsideration, the agency stated that it provided
truthful information about a matter of public record to an agency
considering hiring complainant and said action can not be the basis
of a retaliation claim. Further, the agency stated that the appellate
decision is erroneously premised on complainant's assertion that he is
a former agency employee; and, if appropriately found a justiciable
claim, the instant matter should amend a complaint pending before an
EEOC administrative judge.
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 determining the viability of a claim, the allegations in
a complaint must be taken as true and all reasonable inferences must be
drawn in favor of the complainant. The Commission finds that many of the
agency's arguments address the merits of the complaint without a proper
investigation as required by the regulations, and are irrelevant to the
procedural issue of whether or not complainant has stated a claim under
Title VII that requires further processing. See Osborne v. Department of
the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United
States Postal Service, EEOC Request No. 05930220 (August 12, 1993);
Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642
(August 15, 1991). Accordingly, the claim of retaliation alleged here
is actionable on its face.
The decision in EEOC Appeal No. 0120101281 remains the Commission's
decision and its corresponding Order, reiterated below, in place.
There is no further right of administrative appeal on the decision of
the Commission on this request.
ORDER
The agency is ordered to process the remanded claim in accordance with 29
C.F.R. � 1614.105 et seq. The agency shall acknowledge to the complainant
that it has received the remanded claim within thirty (30) calendar days
of the date this decision becomes final and shall make arrangements for
complainant to be provided with appropriate EEO counseling. The 45-day
limitation period for EEO counselor contact shall be waived in this
matter. If following counseling complainant chooses to file a formal EEO
complaint, the agency shall process the complaint in accordance with
the procedures and timeframes outlined in 29 C.F.R. Part 1614. A copy
of the agency's letter of acknowledgment to complainant must be sent to
the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 19848, Washington,
D.C. 20036. 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 (P0408)
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 (Z1008)
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 29, 2010
__________________
Date
2
0520100290
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520100290