Carl L. White, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Defense Mapping Agency), Agency.

Equal Employment Opportunity CommissionSep 8, 1999
05970845 (E.E.O.C. Sep. 8, 1999)

05970845

09-08-1999

Carl L. White, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Mapping Agency), Agency.


Carl L. White v. Department of Defense

05970845

September 8, 1999

Carl L. White, )

Appellant, )

) Request No. 05970845

v. ) Appeal No. 01953340

)

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Mapping Agency), )

Agency. )

)

DENIAL OF RECONSIDERATION

On June 16, 1997, Carl L. White (hereinafter referred to as appellant)

initiated a request to the Equal Employment Opportunity Commission

(Commission) to reconsider the decision in Carl L. White v. William

S. Cohen, Secretary, Department of Defense (Defense Mapping Agency), EEOC

Appeal No. 01953340 (May 19, 1997). EEOC Regulations provide that the

Commissioners may, in their discretion, reconsider any previous decision.

29 C.F.R. �1614.407(a). The party requesting reconsideration must submit

written argument or evidence which tends to establish one or more of

the following three criteria: new and material evidence is available

that was not readily available when the previous decision was issued,

29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous

interpretation of law, regulation, or material fact, or a misapplication

of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of

such exceptional nature as to have substantial precedential implications,

29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, appellant's

request is denied.

ISSUE PRESENTED

The issue presented herein is whether the previous decision properly

determined that appellant failed to prove that he was subjected to race

(black), sex (male), and reprisal discrimination when he was denied

training, promotional opportunities, and opportunities to compete for

clerical and administrative positions, and not placed into the Upward

Mobility Program.

BACKGROUND

The record in this case reveals that appellant, a Custodial Worker,

WG-2, filed a formal EEO complaint in August 1992, in which he raised

the above-referenced allegations. The agency accepted appellant's

complaint for processing and conducted an investigation with regard

to the matters in question. The agency, after notifying appellant of

his right to request a hearing, issued a final decision, dismissing

appellant's complaint on the grounds that he failed to timely contact

an EEO Counselor.

On appeal, the final agency decision was reversed and the complaint

remanded for a supplemental investigation. White v. Department of

Defense, EEOC Appeal No. 01941746 (May 11, 1994). The Commission found

that appellant timely contacted an EEO Counselor on June 22, 1992,

noting that appellant asserted that he met with the Director on June 19

to discuss training, promotional opportunities, and entry into the Upward

Mobility Program. The Commission stated that while it was possible that

appellant could establish a continuing violation, it was unclear what

specific incidents appellant was referring to in his complaint.

On remand, the agency requested that appellant provide specific

information regarding his allegations, including the dates thereof.

Appellant responded, by letter dated June 13, 1994, stating generally that

the agency had filled a number of clerical positions. Appellant named

five female employees who he alleged were hired into such positions.

Appellant did not provide any information concerning training.<1>

The agency then issued a final decision dated March 9, 1995, finding

no discrimination. The agency initially determined that appellant

had not established a continuing violation. The agency further stated

that appellant failed to establish a prima facie case with regard to the

alleged denial of career opportunities. The agency noted that appellant

did not apply for any advertised positions, or submit an application

to be kept on file for available vacancies. The record also revealed

that there were no positions available under the Upward Mobility Program

during the period in question. The agency asserted that appellant did

not show that he was qualified for clerical or administrative positions.

With regard to training, the agency noted that appellant did not cite any

specific courses which he was denied. The agency stated that appellant's

request for tuition assistance for courses in grammar and time management

was denied by the Tuition Aid Committee, because the training was not

job-related. The previous decision affirmed the final agency decision.

In his request for reconsideration, appellant asserted that he was

qualified for clerical and administrative positions. Appellant noted

that one of the named female employees was non-competitively assigned

to a Personnel Assistant position. Appellant submitted a portion of a

collective bargaining agreement concerning the Upward Mobility Program,

and minutes from a grievance meeting, both of which were already contained

in the record.

The agency countered that appellant's request did not meet the criteria

for reconsideration.

ANALYSIS AND FINDINGS

As discussed above, the Commission may, in its discretion, reconsider

any previous decision when the party requesting reconsideration submits

written argument or evidence which tends to establish that any of the

criteria of 29 C.F.R. �1614.407(c) is met. In order for a case to

be reconsidered, the request must contain specific information which

meets the requirements of this regulation. It should be noted that the

Commission's scope of review on a request to reconsider is limited. Lopez

v. Department of the Air Force, EEOC Request No. 05890749 (September 28,

1989).

After a careful review of the previous decision, appellant's request

for reconsideration, the agency's response thereto, and the entire

record, the Commission finds that appellant's request fails to meet

the criteria in 29 C.F.R. �1614.407(c). Specifically, appellant has

presented no evidence to show that the previous decision's finding of

no discrimination was improper. Further, as stated, the documentation

submitted by appellant was contained in the record on appeal.

Appellant asserted that he was qualified for clerical and administrative

positions. Appellant, however, does not contend that he applied for

any specific positions or submitted an application to be considered

for potential vacancies. While appellant stated that one of the named

female employees was non-competitively appointed to the position of

Personnel Assistant, the record shows that the appointment was temporary,

and appellant did not apply for the vacancy when it was later posted.

Further, contrary to what is implied by appellant, the record reveals

that there were no Upward Mobility positions available during the period

in question. Finally, even assuming that appellant established a prima

facie case of discrimination with regard to the two courses for which he

was denied tuition assistance, appellant has submitted no evidence to show

that the action resulted from prohibited discrimination. Consequently,

based on our review of the record, we find that appellant has failed to

provide evidence which would warrant a reconsideration of the previous

decision.

CONCLUSION

After a review of appellant's request for reconsideration, the agency's

response thereto, the previous decision, and the entire record, the

Commission finds that appellant's request fails to meet the criteria

of 29 C.F.R. �1614.407(c), and it is therefore the decision of the

Commission to DENY appellant's request. The decision in EEOC Appeal

No. 01953340 (May 19, 1997) remains the Commission's final decision.

There is no further right of administrative appeal on a decision of the

Commission on this Request for Reconsideration.

STATEMENT OF RIGHTS - ON RECONSIDERATION

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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. If you file a request to reconsider and also file a

civil action, filing a civil action will terminate the administrative

processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

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:

September 8, 1999

Date Frances M. Hart

Executive Officer

Executive Secretariat

1Appellant also stated that he had previously been subjected to other

incidents of discrimination. The record, however, reveals that appellant

raised those matters with an EEO Counselor in 1991, and appellant

acknowledged in his affidavit that he did not file a formal complaint.

Therefore, the Commission considers those matters to have been abandoned.