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.