05a01133
02-28-2001
Daniel E. O'Brien, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Daniel E. O'Brien v. Department of the Army
05A01133
02-28-01
.
Daniel E. O'Brien,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Request No. 05A01133
Appeal No. 01A03549
Agency No. AJAGFO0003A0040
DECISION ON REQUEST TO RECONSIDER
On August 6, 2000, Daniel E. O'Brien (complainant) timely initiated a
request to the Equal Employment Opportunity Commission to reconsider the
decision in Daniel E. O'Brien v. Louis Caldera, Secretary, Department of
the Army, EEOC Appeal No. 01A03549 (July 21, 2000). EEOC regulations
provide that the Commission may, in its discretion, reconsider any
previous decision where the party demonstrates that: (1) the previous
decision involved a clearly erroneous interpretation of material fact or
law; or (2) the decision will have a substantial impact on the policies,
practices or operation of the agency. 29 C.F.R. � 1614.405(b).<1>
For the reasons set forth below, the complainant's request is denied.
The issue presented is whether complainant's request meets the criteria
for reconsideration.
Complainant contacted an EEO counselor on August 6, 1999, alleging
discrimination based on sex, age (DOB 12-1-33), and reprisal when his
rating for a position was lowered in December 1996, and he was not
selected for the position. The previous decision affirmed the agency's
dismissal of his formal complaint on the grounds that he had a reasonable
suspicion of discrimination as early as January 1997, as evidenced by
his statements in letters to the Office of Personnel Management.
In his request, complainant states his intention to �appeal� the previous
decision and "to avail myself of your offered counsel." In order to merit
the reconsideration of a prior Commission decision, the requesting party
must submit written argument that tends to establish that at least one of
the criteria of 29 C.F.R. � 1614.405(b) is met. The Commission's scope
of review on a request for reconsideration is narrow, and a request is not
merely a form of second appeal. Lopez v. Department of the Air Force,
EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS,
EEOC Request No. 05900850 (September 7, 1990).
The Commission's regulations require that a complainant bring his/her
complaint to the attention of an EEO counselor within 45 days of
an alleged discriminatory event or the effective date of an alleged
discriminatory personnel action. 29 C.F.R. �1614.105(a)(1). The record
shows that complainant failed to bring these matters to the attention
of an EEO counselor within 45 days and failed to offer a sufficient
explanation or justification for the delay. 29 C.F.R. �1614.105(a)(2).
For these reasons, we agree with the previous decision and find that
complainant's initial contact with an EEO counselor was untimely, and
his complaint was properly dismissed. 29 C.F.R. � 1614.107(a)(2).
Complainant also misreads his rights on appeal. The paragraph entitled
"Right to Request Counsel" states that "you may request that the Court
appoint an attorney to represent you," and that "grant or denial of the
request is within the sole discretion of the Court." (bold in original).
The paragraph immediately preceding affords complainant the right to file
a civil action in the appropriate United States District Court within
ninety (90) calendar days from the date that the previous decision was
received. These rights, repeated below, are given by the Commission
but counsel can only be granted by the court when a civil action has
been filed in court. Further, complainant is advised that the previous
decision, as affirmed herein, addressed the procedural issue of whether
his EEO contact was timely, and did not consider his complaint on its
merits.
CONCLUSION
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
complainant's request fails to meet any of the criteria of 29 C.F.R. �
1614.405(b), and it is the decision of the Commission to deny the
complainant's request. The decision of the Commission in EEOC Appeal
No. 01A03549 (July 21, 2000) remains the Commission's final decision.
There is no further right of administrative appeal from a decision of
the Commission on a request for reconsideration.
STATEMENT OF COMPLAINANT'S RIGHTS - ON 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
__02-28-01________________
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.