0520140020
04-04-2014
Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Request No. 0520140020
Appeal No. 0120132130
Agency No. FBI201200289
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120132130 (September 13, 2013). 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(c).
BACKGROUND
Complainant alleged that he was subjected to discrimination on the basis of race (African American) when sometime in 2009, he did not receive a Director's Award for Excellence for his efforts during the 2009 Presidential Inauguration. The complaint was dismissed by the Agency for untimely EEO Counselor contact. The Agency found that the discriminatory act occurred in 2009 but Complainant did not contact an EEO Counselor until August 15, 2012, which was beyond the regulatory limit. The previous decision affirmed the Agency's dismissal of the complaint. The decision found that Complainant's argument that he did not learn of the discrimination until August 14, 2012, was not persuasive in that, Complainant had a duty to act with due diligence in the pursuit of his claim or the doctrine of latches could be applied which was the case here.
REQUEST FOR RECONSIDERATION CONTENTIONS
In his request for reconsideration, Complainant asserts that the appellate decision constituted a clearly erroneous interpretation of material fact and law, and Complainant's EEO contact on August 15, 2012, regarding his non-selection for the FBI Director's Award for the 2009 Presidential Inauguration, was timely under the reasonable suspicion standard. According to Complainant, he did not suspect discrimination played a role here until August 14, 2012.
In response, the Agency contends that Complainant cannot meet the criteria required for the Commission to reconsider the appellate decision. The Agency also argues that Complainant has repeated the same arguments raised in his initial appeal and that OFO has already considered these arguments and rejected them.
ANALYSIS AND FINDINGS
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(c), and it is the decision of the Commission to deny the request. We agree that Complainant's arguments are the same as those presented in the underlying complaint. We also find that Complainant failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law in finding that he failed to act with due diligence in this matter by waiting until August 2012 to pursue his claim.
Finally, we find that even under the reasonable suspicion standard that Complainant's complaint was properly dismissed. Here, Complainant indicated that after the 2009 Inauguration he learned that SSA-1, a white agent who had made inappropriate racial comments about the then President-elect, had received the Director's Award. Sometime thereafter, Complainant learned that he had received an eight hour time off award for his efforts. In 2011 or 2012, Complainant learned that an eight hour time off award was the smallest time interval that could be awarded. According to Complainant, he reflected on the significant difference between the Director's Award that some had received for the Inauguration, and the eight hour time off award he received. In this regard, Complainant noted the amount of work that he and his personnel provided. On August 14, 2012, he discovered that another white agent, SSA-2, had received the Director's Award and that this was when he realized that he had been discriminated against. Under the reasonable suspicion standard, the time limitation is triggered when a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Complainant's statements are indicative that he at least suspected that he was being treated differently than others well before the 45-day period that preceded his August 15, 2012 counselor contact. He was under no obligation to wait until he had assembled all the facts that would later support his case. As noted by the previous decision, Complainant, by waiting more than three years to contact an EEO Counselor, did not act with due diligence in pursuing his claim. Accordingly, we find that the decision in EEOC Appeal No. 0120132130 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
__4/4/14________________
Date
2
0520140020
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140020