0520110655
02-13-2012
Benoit Brookens, Complainant, v. Ron Kirk, U.S. Trade Representative, Executive Office of the President (Office of the United States Trade Representative), Agency.
Benoit Brookens,
Complainant,
v.
Ron Kirk,
U.S. Trade Representative,
Executive Office of the President
(Office of the United States Trade Representative),
Agency.
Request No. 0520110655
Appeal No. 0120090325
Hearing No. 100-2006-00598X
Agency Nos. USTR-05-01, USTR-05-02
DENIAL
Complainant timely requested reconsideration of the decision in
Benoit Brookens v. Executive Office of the President (Office of the
U.S. Trade Representative), EEOC Appeal No. 0120090325 (April 13, 2011).
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).
The previous decision affirmed the Agency’s implementation of an EEOC
Administrative Judge’s (AJ) decision without a hearing. The AJ issued
a decision finding no discrimination in Complainant’s complaint in
which he had alleged discrimination based on race, age and reprisal
when he was not hired for two positions with the Agency. The AJ found
that Complainant was not hired for either position because both vacancy
announcements were canceled due to budgetary constraints. The previous
decision found that there were no genuine issues of material fact in
dispute, and, even considering the evidence in the light most favorable
to Complainant, Complainant had not shown the Agency’s reasons for
its actions to be pretext for discrimination.
In his request for reconsideration, Complainant argued that the previous
decision erred when it found that there was no material fact in dispute,
and argued that the decision should have remanded his complaint to an
AJ for a hearing. Complainant argued, as he had before the AJ and on
initial appeal, that a document in evidence cast doubt on the Agency’s
articulated reasons. The Agency did not file any brief or statement in
opposition to Complainant’s request for reconsideration.
We find that Complainant’s request for reconsideration fails to show
that our previous decision involved a clearly erroneous interpretation
of fact or law, or that it would have a substantial impact on the
policies, practices or operations of the Agency. Complainant advanced
many of the same arguments in his request for reconsideration as were
advanced, and considered, in the initial appeal. We note that a request
for reconsideration is not a second form of appeal. See e.g., Lopez
v. Dep’t of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007).
Complainant does not otherwise show that the previous decision was
clearly erroneous.
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. The decision in EEOC Appeal No. 0120090325 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
February 13, 2012
Date
2
0520110655
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110655