Allen L. McDaniel, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionDec 20, 2000
05a10023 (E.E.O.C. Dec. 20, 2000)

05a10023

12-20-2000

Allen L. McDaniel, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.


Allen McDaniel v. Department of the Interior

05A10023

December 20, 2000

.

Allen L. McDaniel,

Complainant,

v.

Bruce Babbitt,

Secretary,

Department of the Interior,

Agency.

Request No. 05A10023

Appeal No. 01992271

Agency Nos. LMS-97-007 & LMS-98-005

DENIAL OF REQUEST FOR RECONSIDERATION

Allen L. McDaniel (complainant) initiated a request to the Equal

Employment Opportunity Commission (EEOC or Commission) to reconsider the

decision in Allen McDaniel v. Department of the Interior, EEOC Appeal

No. 01992271 (August 29, 2000).<1> EEOC Regulations provide that the

Commission may, in its discretion, 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).

After a review of the complainant's request for reconsideration, 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).

Complainant alleged that he was retaliated against due to his prior EEO

activity when he was denied access to promotion opportunities (Complaint

No. 1), and when he was given a verbal warning about remarks made about

other employees (Complaint No. 2). The prior decision affirmed the

agency's dismissal of both of these claims, finding that complainant filed

a civil action raising the same issues and that he failed to establish

that the civil action was dismissed without prejudice. In his request

for reconsideration, complainant argues that while he did not appeal

the agency's dismissal of Complaint No. 1, it is well-established that

Complaint No. 2 was not included in the civil action.<2> In support of

this contention, he attaches an Order from the United States District

Court for the Northern District of Texas, Dallas Division (Civil

Action No. 3:96-CV-3077-P). The Order explains the Court's reasons

for granting the agency's motion for Summary Judgment on �Plaintiffs'

retaliation claim� and includes a footnote which reads, �....Plaintiff

McDaniel withdrew his allegation of Defendant's reprimand as part of

his retaliation claim.� The Order provides no further details.

Complainant also reiterates arguments made on appeal that the agency

failed to address his claims of witness tampering, obstruction of justice,

and harassment during the EEO administrative hearing.

The prior decision correctly noted that when a complainant does not

dispute the filing of a civil action over an identical issue, but

instead contends that the complaint was dismissed, the complainant has

the burden to show that the civil action was in fact dismissed without

prejudice. See Healy v. United States Postal Service, EEOC Request

No. 05940548 (August 18, 1994). Here, complainant failed to establish

that the District Court permitted the withdrawal of the issue raised

in Complaint No. 2 without prejudice. Moreover, complainant failed to

offer any argument whatsoever to demonstrate that the prior decision's

finding that his claims of witness tampering, obstruction of justice,

and harassment at the administrative hearing were spin-off allegations

and therefor subject to dismissal under 29 C.F.R. � 1614.10(a)(8).

Thus, complainant failed to establish that the prior decision involved

a clearly erroneous interpretation of law or fact. Similarly,

complainant offered nothing to demonstrate that the prior decision will

have a substantial impact on the policies, practices, or operations of

the agency. Accordingly, it is the decision of the Commission to deny

complainant's request for reconsideration. The decision in EEOC Appeal

No. 01992271 remains the Commission's final decision. There is no

further right of administrative appeal on the decision of the Commission

on this request for reconsideration.

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 20, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 The initial appeal form received by the Commission indicated that

complainant was appealing the agency's dismissal of both Complaint No. 1

and Complaint No. 2. Complainant alleges that he subsequently sent

a supplemental appeal notice informing the Commission that he was not

appealing the dismissal of Complaint No. 2. When the prior decision

was written, this supplemental information was not in the record and

the Commission therefore addressed the dismissal of both claims.