05a00316
02-12-2001
Benny Rosser, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Benny Rosser v. Department of Transportation (Federal Aviation
Administration)
05A00316
02-12-01
.
Benny Rosser,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Request No. 05A00316
Appeal No. 01970650
Agency No. 95-0337
DECISION ON REQUEST TO RECONSIDER
On December 12, 1999, Benny Rosser (complainant) timely initiated a
request to the Equal Employment Opportunity Commission to reconsider the
decision in Benny Rosser v. Rodney E. Slater, Secretary, Department of
Transportation (Federal Aviation Administration), EEOC Appeal No. 01970650
(December 8, 1999). EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous decision where the
party demonstrates that: (1) the previous decision involved a clearly
erroneous interpretation of material fact or law; or (2) the decision
will have a substantial impact on the policies, practices or operation
of the agency. 29 C.F.R. � 1614.405(b).<1> For the reasons set forth
below, the complainant's request is denied.
The issue presented is whether complainant's request meets the criteria
for reconsideration for reconsideration.
Complainant filed a formal complaint alleging discrimination based on
race when his position was not upgraded in December 1994. The previous
decision affirmed the agency's finding of no discrimination, and
complainant has filed the instant request.
Following a reorganization, complainant claimed that his new position
as Manager, Personnel Services, was enhanced, and he sought an upgrade
to GS-15. In support, among other things, he compared his position to
that of Manager, Public and Government Affairs (PGA), which was occupied
by a female (E1) and which had been upgraded by complainant's immediate
supervisor (S1). S1 explained that E1's position was upgraded when her
duties and responsibilities changed.
The previous decision explained that it was complainant's ultimate burden
to demonstrate that the agency's reason for not upgrading his position was
pretextual, that is, more likely than not motivated by a discriminatory
factor or a sham or disguise for discrimination. The agency contended
that complainant's new position did not warrant an upgrade and that
similar positions in other regions were at GS-14 or lower, and complainant
did not demonstrate that the agency's reasons were pretextual.
In his request, complainant asserted that new, material facts, i.e.,
that regional PGAs were GS-14 or lower prior to the reorganization and
that regional PGAs had similar duties, demonstrated that S1's explanation
was not valid and questioned whether S1 would have needed approval from
headquarters to upgrade his position when he did not need it to upgrade
E1's position. The agency filed comments arguing that complainant's
request did not meet the criteria for reconsideration and that neither
E1 or E1's position was a valid comparison.
In order to merit the reconsideration of a prior Commission decision,
the requesting party must submit written argument that tends to establish
that at least one of the criteria of 29 C.F.R. � 1614.405(b) is met.
The Commission's scope of review on a request for reconsideration is
narrow, and it is not a form of second appeal. Lopez v. Department of
the Air Force, EEOC Request No. 05890749 (September 28, 1989); Regensberg
v. USPS, EEOC Request No. 05900850 (September 7, 1990).
Based on a thorough review of the record and all statements submitted,
we affirm the finding in the previous decision that the agency did not
discriminate against complainant. As stated in the previous decision,
neither the record nor complainant demonstrated that the agency's
explanation for not upgrading his position was not true or pretextual.
Complainant's comparison to E1 is misplaced, in that, E1 is not similarly
situated to complainant. In order for two or more employees to be
considered similarly situated, all relevant aspects of their work
situation must be identical or nearly identical. Smith v. Monsanto
Chemical Co., 770 F.2d 719, 723 (8th Cir. 1985). Since E1 worked in
another department, reported to a manager in Headquarters, and performed
different functions, complainant is not similarly situated to her.
See O'Neal v. USPS, EEOC Request No. 05910490 (July 23, 1991).
CONCLUSION
After a review of the complainant's request for reconsideration, the
agency's reply thereto, the previous decision, and the entire record,
the Commission finds that the complainant's request fails to meet any
of the criteria of 29 C.F.R. � 1614.405(b), and it is the decision
of the Commission to deny the complainant's request. The decision
of the Commission in EEOC Appeal No. 01970650 (December 8, 1999)
remains the Commission's final decision. There is no further right of
administrative appeal from a decision of the Commission on a request
for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON 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
___02-12-01_______________
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.