05980129
11-04-1999
Aaron A. Wilson, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Contract Audit Agency) Agency.
Aaron A. Wilson v. Department of Defense
05980129
November 4, 1999
Aaron A. Wilson, )
Appellant, )
) Request No. 05980129
v. ) Appeal No. 01971731
) Agency No. C97-02
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Contract Audit Agency) )
Agency. )
________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On November 13, 1997, Aaron A. Wilson (hereinafter referred to as the
appellant) timely initiated a request to the Equal Employment Opportunity
Commission (the Commission) to reconsider the decision in Aaron A. Wilson
v. William S. Cohen, Secretary, Department of Defense (Defense Contract
Audit Agency), EEOC Appeal No. 01971731 (October 9, 1997), received
on October 24, 1997. EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons stated below, appellant's
request is denied.
The issue presented is whether the previous decision's determination
that appellant sought EEO counseling in an untimely manner should be
reconsidered pursuant to 29 C.F.R. �1614.407(c)(1).
The record indicates that appellant, an auditor born on April 5, 1945,
received a performance appraisal rating of "Exceeds Fully Successful"
for the period April 1, 1995 to March 31, 1996. Appellant felt that he
should have received an "Outstanding" on job element #5, which would have
given him an overall performance rating of "Outstanding." Upon receipt of
his performance appraisal, appellant expressed his displeasure to A-1,
his supervisor. On May 1, 1996, he met with A-2, the Branch Manager.
After considering his arguments, A-2 informed appellant that the
rating would not be changed. On May 3, 1996, appellant signed the
performance appraisal and attached comments explaining why he deserved an
"Outstanding" rating.
On August 14, 1996, appellant contacted an EEO counselor. According to
appellant, he was not aware, until August 1, 1996, that he had been
discriminated against on the basis of his age. On that date, the agency
published a list of employees who had received performance awards.
On the list, appellant saw the name of C-1, an auditor who was less than
40 years of age. Subsequently, appellant was told that C-1 had received
an "Outstanding" performance award. According to appellant, he thought
that his performance was equal to C-1's. He reasoned, therefore, that if
C-1 and other auditors, who were less than 40 years of age, had received
"Outstanding" ratings, then he must have been discriminated against
because of his age.
The agency dismissed appellant's complaint, which was filed on October 3,
1996, on the grounds that he sought EEO counseling in an untimely manner.
According to the agency, appellant received his performance appraisal on
April 26, 1996 and signed it on May 3, 1996; therefore, his August 14,
1996 counselor contact was well beyond the 45-day time limitation period.
On appeal, appellant reiterated his contention that he did not suspect
age discrimination until August 1, 1996. The previous decision affirmed
the dismissal of appellant's complaint.
In his request to reconsider (RTR), appellant argued that new and
material evidence exists which was not readily available when the previous
decision was issued. According to appellant, the new evidence supports
his contention that he did not suspect discrimination until August 1,
1996. The evidence offered by appellant consisted of his recitation of
conversations that he had with unnamed management officials on November
6, 1997. During these discussions, the management officials, according
to appellant, confirmed that they never told him that auditors less than
40 years of age were receiving favorable treatment.<1> Appellant also
maintained that the officials (1) denied informing him that favoritism
or age discrimination had occurred in his case; and (2) indicated that
they only spoke to appellant about his performance as it related to
his rating.
The agency opposed appellant's RTR on the grounds that he did not meet
the criteria set forth in 29 C.F.R. �1614.407(c)(1).
In order to merit the reconsideration of a prior Commission decision, the
requesting party must submit written argument or evidence which tends to
establish that at least one of the criteria of 29 C.F.R. �1614.407(c)
has been met. The Commission's scope of review on a request for
reconsideration is narrow. Lopez v. Department of the Air Force, EEOC
Request No. 05890749 (September 28, 1989). A reconsideration request is
not merely a second appeal. Regensberg v. USPS, EEOC Request No. 05900850
(September 7, 1990). Instead, it is an opportunity to submit newly
discovered evidence, not previously available; to establish substantive
error in a previous decision; or to explain why the previous decision
will have effects beyond the case at hand. Lyke v. United States Postal
Service, EEOC Request No. 05900769 (September 27, 1990).
After a careful review of the record, the Commission finds that
appellant's request does not meet the regulatory criteria of 29
C.F.R. �1614.407(c)(1). The "evidence" offered by appellant is not newly
discovered evidence that was previously unavailable. On the contrary,
appellant merely recited his November 1997 discussions with unnamed
management officials, regarding conversations that occurred in May 1996.
Since appellant was a party to the May 1996 conversation, he was aware of
the content of that discussion and could have provided this information
to the Commission prior to the issuance of the previous decision.
Additionally, we find no other reason that would justify reconsidering
the previous decision. We note in this regard, appellant's statement in
his formal complaint concerning his May 1, 1996 conversation with A-2.
According to appellant, A-2 indicated that:
[i]t was a requirement [for him] to have all of the issues resolved and
that I did not have all the 94 Overhead issues resolved. I informed
him that over 90 percent of the issues were resolved. I also reminded
him that none of the auditors, that I thought may have received an
outstanding rating in our suboffice, had resolved or sustained all of
their issues or cost questioned [sic].
(Emphasis added).
We find it reasonable to conclude that appellant, as early as May
1, 1996, suspected that he was being treated differently than other
auditors in his office because of his age. Although he might not have
had all of the facts, at that time, to substantiate his concerns, he
had enough information to reasonably suspect that he was being held
to a higher standard than younger auditors in the office. Therefore,
he was required to contact an EEO counselor within the 45-day time
limitation period.
After a review of appellant's request to reconsider, the agency's
response, the previous decision, and the entire record, the Commission
finds that appellant's request fails to meet the criteria of 29
C.F.R. �1614.407(c)(1), and it is the decision of the Commission to deny
the request. The decision in EEOC Appeal No. 01971731 (October 9, 1997)
remains the Commission's final decision. There is no further right of
administrative appeal from a decision of the Commission on a request to
reconsider.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
November 4, 1999
Date Frances M. Hart
Executive Officer
1In its response to appellant's appeal, the agency noted his statement,
contained in the formal complaint, that soon after his May 1, 1996
conversation with A-2, he was told by some of the supervisors in
the office that he was being held to higher standards than auditors
who were less than 40 years of age. In a letter dated March 11, 1997,
appellant's representative argued, however, that the agency misinterpreted
appellant's statement. According to the representative, the supervisors
only told appellant that they did not hold employees to the standards
that appellant was being held to. Appellant, stated the representative,
merely extrapolated, months later, that the supervisors' comments meant
that employees who were less than 40 years of age were being treated
differently.