0520140355
02-05-2015
Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Request No. 0520140355
Appeal No. 0120140562
Agency No. P20130372
DENIAL
Complainant timely requested reconsideration of the decision in Complainant v. Department of Justice, EEOC Appeal No. 0120140562 (April 7, 2014). 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).
The previous decision affirmed the Agency's dismissal of Complainant's EEO complaint for untimely EEO Counselor contact. Specifically, the decision found that Complainant failed to make EEO Counselor contact within 45 days of the occurrence of the alleged discriminatory incidents, and that he was unable to establish that he should not have "reasonably suspected" that he had been subjected to discrimination before receiving the arbitrator's decision on January 10, 2013.
In the request, Complainant reiterates his contention that he made contact with an EEO Counselor on November 5, 2012, and that this date was well within the 45 day required time limit. Additionally, Complainant alleges that he did not initiate the grievance which formed the basis of the arbitrator's decision, and therefore could not have had a "reasonable suspicion" regarding any of the allegations at issue and addressed in the grievance matter until the decision was issued.
The Commission has long held that in order to satisfy the criterion for initial EEO counseling contact, a complainant need only contact an official logically connected with the EEO process, even if that official is not an EEO Counselor, and exhibit an intent to begin the EEO process. Chong v. Department of Veterans Affairs, EEOC Appeal No. 01A20526 (June 19, 2002).
In the November 5, 2012 email, Complainant stated, in pertinent part, that:
[I] just wanted to ask you a few questions about some stuff that has been going on here at FCI Greenville for the last year or so. The union filed a grievance on secret files that our supervisor had been keeping on us in December of last year. Things have kind of gotten out of control ever since. The union has filed I believe at least 4 ULP'S and at least 2 grievances since. I don't really want to start any new trouble but, at the same time I'm a little worried about what's going to happen next.
We do not find that the previous decision clearly erred, because Complainant at no time in the email indicated that he thought he was being discriminated against or that he wanted to file an EEO complaint. Certainly, he indicated that he wanted to talk to the EEO counselor but the matters he cited, i.e., Union grievances, and unfair labor practices, would not, without more, indicate that Complainant wanted to begin the EEO process.
Because Complainant has not put forth any arguments which the Commission finds to be material to the outcome of the underlying decision, or that were not previously considered in rendering the underlying decision, the Commission finds that Complainant has not demonstrated that the underlying decision involved a clearly erroneous interpretation of material fact or law. Additionally, Complainant has failed to successfully argue or demonstrate that the underlying decision would have a substantial impact on the policies, practices, or operations of the Agency. Complainant is reminded that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9 � VII.A. (Nov. 9, 1999). A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or will have a substantial impact on the policies, practices, or operations of the Agency.
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. The decision in EEOC Appeal No. 0120140562 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
__2/5/15________________
Date
2
0520140355
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140355