0520130262
05-31-2013
Andrew Lopez, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Andrew Lopez,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Request No. 0520130262
Appeal No. 0120122949
Agency No. ARCEHECSA11DEC05537
DENIAL
Complainant timely requested reconsideration of the decision in Andrew Lopez v. Department of the Army, EEOC Appeal No. 0120122949 (December 12, 2012). 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).
BACKGROUND
Complainant, a former employee of the Agency's Office of Counsel, alleged that he was subjected to discrimination on the bases of national origin, sex, age, and in reprisal for prior EEO activity when: (a) on December 6, 2011, the Chief Counsel did not provide him a letter of approval to serve as a named male employee's representative; and (b) on February 1, 2012, the Chief Counsel did not provide him a letter of approval to serve as a named female employee's representative. The Agency dismissed the complaint for failure to state a claim as Complainant failed to show that he was aggrieved. The Commission affirmed the dismissal finding that an employee alleging discrimination may select the representative of his or her choice. However, it is the aggrieved employee, not the representative, who has standing to file a complaint concerning an Agency action that affects the duties of the representative. See DuBois v. Social Security Administration, EEOC Appeal No. 01974627 (February 20, 1998); request to reconsider denied, EEOC Request No. 05890552 (June 22, 2000). The Commission found that in this case, Complainant was the preferred representative of another employee and that employee may file a complaint over the denial of permission for Complainant to serve as representative, not Complainant. Therefore, the Commission held that the Agency had correctly determined that Complainant had not alleged a personal loss or harm regarding a term, condition or privilege of his employment.
REQUEST FOR RECONSIDERATION CONTENTIONS
In his request for reconsideration, among other things, Complainant provides background information regarding his interactions with the Chief Counsel and his involvement in the EEO process representing various employees. Complainant maintains that the Agency framed this complaint incorrectly and that the proper issue should have been whether the Agency deliberately prevent a former employee (Complainant), from representing a current employee. Complainant argues that the cases cited by the Agency do not apply to this situation because the Agency refusing to provide post-employment letters authorizing representation states a claim. He also argues that he has stated a claim of reprisal because he believes authorization was denied to him because of his prior EEO complaint activity.
In response, the Agency requests that Complainant's request for reconsideration be denied. The Agency maintains that Complainant fails to understand that he does not have standing to bring this complaint as it is the Complainants involved in the named complaints that have standing. The Agency maintains that the cases cited by the Agency and the Commission were correct. The Agency also maintains that all of Complainant's arguments are repeated from the appeal and have already been addressed by the Commission.
ANALYSIS AND FINDINGS
After reviewing 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. We find that Complainant failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law; or that the appellate decision will have a substantial impact on the policies, practices, or operations of the agency The Commission finds that other than conclusory statements made by Complainant he has failed to show that his complaint states a claim. A review of the decision shows that the Commission cited the correct law and correctly found that Complainant failed to show that he suffered a personal loss or harm regarding a term, condition, or privilege of his employment. The Commission also finds that Complainant's arguments in his request for reconsideration were previously addressed in the appellate decision. Accordingly, the decision in EEOC Appeal No. 0120122949 remains the Commission's 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 (P0610)
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 (Z0610)
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
__5/31/13________________
Date
2
0520130262
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520130262