0520120061
04-13-2012
Charles S. Brantley, Complainant, v. John Bryson, Secretary, Department of Commerce (Patent and Trademark Office), Agency.
Charles S. Brantley,
Complainant,
v.
John Bryson,
Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.
Request No. 0520120061
Appeal No. 0120093342
Hearing No. 570-2008-00855X
Agency No. 07-56-110
DENIAL
Complainant timely requested reconsideration of the decision in Charles S. Brantley v. Department of Commerce, EEOC Appeal No. 0120093342 (September 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).
In our previous decision, we found that an EEOC Administrative Judge (AJ) properly issued a decision without a hearing in favor of the Agency. We noted that Complainant submitted a motion dismissing all of his claims except for claim 1. As such, with respect to claim 1, we noted that the Agency articulated legitimate, nondiscriminatory reasons for its actions, and Complainant failed to establish that those reasons were pretext for discrimination. We noted that Complainant was deemed ineligible for overtime work because his performance rating fell below a fully successful for the third quarter of Fiscal Year 2007. We noted that Complainant's third quarter production was less than 95 percent, and the Agency's policy regarding overtime was applied to all GS-14 attorneys and not just Complainant. We further noted that Complainant's contention that he was subjected to a hostile work environment was precluded by our determination that he failed to establish that the actions taken by the Agency were motivated by discriminatory animus.
We also noted that Complainant's complaint contained additional allegations that included a list of 14 claims with approximately 79 subparts. We found that, with the exception of the three claims accepted in the instant case, and one subpart of claims 13 and 14, the Agency properly dismissed a portion of the 14 claims as the same claims that were set forth in a prior EEO complaint filed by Complainant. We noted that the Commission affirmed the dismissal of those claims in Brantley v. Dep't of Commerce, EEOC Appeal No. 0120080175 (January 3, 2008), req. for recon. den'd, EEOC Request No. 0520080301 (July 28, 2008). We also found that the Agency properly dismissed claim 13 subpart 60 for untimely EEO counselor contact.1
In his request for reconsideration, Complainant, in pertinent part, contends that his appeal brief clearly indicated that claims 4, 6 through 9, 11, and 21 were the claims correctly on appeal. Complainant contends that our previous decision does not include any reference to claim 21. Complainant also contends that our previous decision is inconsistent with Brantley, EEOC Appeal No. 0120080175. Complainant contends that claims 4, 6 through 9, 11, and 21 are clearly not the same claims as any claim in his prior EEO complaint addressed in our decision above.
We note that claims 6 through 9 refer to Complainant's non-promotion to the GS-15 grade level, as did claims 1 and 2 in Brantley, EEOC Appeal No. 0120080175. Also, claim 11 refers to the use of a production plan by management, as did claim 3 in our decision noted above. With respect to claim 21, we note that it contains 125 subparts and, for the most part, alleges retaliation in relation to his non-promotion to the GS-15 grade level and management's use of production plans to rate him and other attorneys. We note that much of claim 21 is simply a rewording of claims already addressed in our previous decision and in Brantley, EEOC Appeal No. 0120080175.
In any event, a request for reconsideration is not a second form of appeal. E.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007); EEO Management Directive for Part 1614 (EEO MD-110), Chap. 9, �VII.A. (Nov. 9, 1999). Nothing in Complainant's request establishes clear error of material fact or law in the previous decision.
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. 0120093342 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
April 13, 2012
Date
Date
1 On July 17, 2007, the Agency issued a Partial Dismissal/Acceptance of Complainant's 14 claims. Subsequently, on or around April 30, 2008, Complainant sought to amend his complaint to add claims 15 through 24, but the Agency did not accept Complainant's amended claims. By order dated February 26, 2009, the AJ granted Complainant's request to add claims 23 and 24, but denied Complainant's request to add the other claims.
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0520120061
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520120061