0520120304
12-12-2012
Dwight D. Murray, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.
Dwight D. Murray,
Complainant,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Request No. 0520120304
Appeal No. 0120103086
Hearing No. 410-2008-00129X
Agency No. 2007-0040-R4
DENIAL
Complainant timely requested reconsideration of the decision in Dwight D. Murray v. Environmental Protection Agency, EEOC Appeal No. 0120103086 (January 26, 2012). 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).
The previous decision affirmed the Agency's implementation of the decision of an EEOC Administrative Judge (AJ), which found that Complainant had not been discriminated against based on his race, age, or in reprisal for previous EEO activity when he received a "fully successful" rating for the 2006 performance year, and when his position was not upgraded to the GS-14 level. The AJ also found that Complainant was not entitled to GS-14 compensation. The previous decision found that Complainant did not state a valid Equal Pay Act claim because his comparator was also a male, and the Equal Pay Act prohibits discrepancies based on sex, not any other basis. The previous decision also concluded that Complainant had not shown the Agency's legitimate, nondiscriminatory reasons to be pretext for discrimination with respect to his claims on his performance rating, and his claim that he should be compensated at the GS-14 level and his position upgraded to a GS-14.
Complainant filed a request for reconsideration in which he argued that the previous decision was clearly erroneous in its conclusions and its affirmance of the AJ's decision and the Agency's final order. Complainant argued that the previous decision and the AJ were erroneous when each concluded that Complainant had not shown that he was discriminated against based on his race and in reprisal for prior EEO activity when he was subjected to disparate pay when performing substantially similar duties and responsibilities, as compared to his (White male) predecessor in the position. Complainant also argued that the previous decision and the AJ erred in the conclusion that Complainant had not shown that his qualifications were the equivalent of his predecessor's, such that he should be upgraded to a GS-14 level, even though his position was rated at a GS-13 level and it was not advertised as having any promotion potential.
The Agency filed a statement in opposition to Complainant's request for reconsideration in which it urged the Commission to deny reconsideration and affirm the previous decision. The Agency argued that Complainant's statement in support of his request for reconsideration merely restated arguments made in the initial appeal and before the AJ at hearing.
We find that Complainant's request for reconsideration fails to show that our previous decision involved a clearly erroneous interpretation of fact or law, or that it would have a substantial impact on the policies, practices or operations of the Agency. Complainant's arguments are substantially the same as those raised to the AJ and in the initial appeal. We note that 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); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (Nov. 9, 1999), at 9-17. This Commission carefully considered all of the record evidence and arguments on appeal at the time it rendered the initial 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. 0120103086 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
December 12, 2012
Date
2
0520120304
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120304