Clarence L. Johnson, Complainant,v.Louis Caldera, Secretary, Department of the Army Agency.

Equal Employment Opportunity CommissionNov 9, 2000
05a01200 (E.E.O.C. Nov. 9, 2000)

05a01200

11-09-2000

Clarence L. Johnson, Complainant, v. Louis Caldera, Secretary, Department of the Army Agency.


Clarence L. Johnson v. Department of the Army

05A01200

November 9, 2000

.

Clarence L. Johnson,

Complainant,

v.

Louis Caldera,

Secretary,

Department of the Army

Agency.

Request No. 05A01200

Appeal No. 01974586

Agency No. COL-96-AR-044-E

Hearing No. 100-96-7282X

DENIAL OF REQUEST FOR RECONSIDERATION

The complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Clarence

L. Johnson v. Department of the Army, EEOC Appeal No. 01974586 (July

27, 1999).<1> EEOC Regulations provide that the Commission may, in

its discretion, 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 his original complaint, complainant alleged that he was discriminated

against because of his race (Black), and age (51), when on April 17,

1995, he was not selected for one of five positions of Firefighter,

GS-081-05/06. In his Recommended Decision (RD), however, the

Administrative Judge (AJ) found that the nonselection of complainant was

due to an administrative error by a Personnel Staffing Specialist (�PSS�)

who failed to properly note complainant's status and, therefore, included

his name along with the nonstatus eligible applicants. Inasmuch as

the PSS was not aware of complainant's race and there was no showing

that his age was a factor in the administrative error, the AJ found

that complainant failed to establish discrimination. Subsequently, the

agency adopted the RD as its own final decision (FAD), and on appeal,

the Commission affirmed the FAD.

In his request to reconsider, complainant contends that he should have

been selected over all the other candidates because (1) he had worked

for the Federal government for fifteen years and so had reinstatement

rights, and (2) was put on active military duty for three years during

the Gulf War and so had Veterans readjustment rights.

In its comments opposing complainant's request, the agency contends

(1) that complainant's request is untimely, and (2) that in any event,

the request should be denied because complainant failed to establish

that the EEOC appeal decision involved an erroneous interpretation of

material fact or law, or that the decision would have a substantial

impact on the policies, practices, and operations of the agency.

Contrary to the agency's contention that complainant's request was

untimely, the Commission finds that it was timely, in that the decision

(EEOC Appeal No. 01974586) was dated July 27, 1999, and complainant's

request was postmarked August 24, 1999, well within the 30-day time

limit of 29 C.F.R. � 1614.405(b).

Nevertheless, we find that complainant failed to establish that the

decision involved an erroneous interpretation of material fact or law,

since complainant merely reiterated that he should have been selected

because of his rights as a former federal employee and veteran.

After a review of the complainant's request for reconsideration, the

previous decision, and the entire record, the Commission therefore 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. 01974586 remains the Commission's

final decision. There is no further right of administrative appeal on

the decision of the Commission on this 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

November 9, 2000

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.