05970526
12-24-1998
Earl Alexander, Appellant, v. Robert M. Walker, Acting Secretary, Department of the Army, Agency.
Earl Alexander v. Department of the Army
05970526
December 24, 1998
Earl Alexander, )
Appellant, ) Request No. 05970526
) Appeal No. 01960566
v. ) Agency No. 9508F1060
)
Robert M. Walker, )
Acting Secretary, )
Department of the Army, )
Agency. )
)
DECISION ON RECONSIDERATION
INTRODUCTION
On February 24, 1997, Earl Alexander (hereinafter referred to
as appellant) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision
in Alexander v. Dep't of Transportation, EEOC Appeal No. 01960566
(January 22, 1997). EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or
more of the following three criteria: new and material evidence is
available that was not readily available when the previous decision
was issued, 29 C.F.R. �1614.407(c)(1); the previous decision involved
an erroneous interpretation of law or regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
set forth herein, appellant's request is denied.
ISSUE PRESENTED
The issue presented is whether appellant's request meets any of the
statutory criteria for reconsideration.
BACKGROUND
The previous decision gave a complete account of the facts at issue in
this case, and the Commission adopts that version of the facts herein.
A summary of the relevant facts and issues follows. Following lumbar disc
surgery in 1985, appellant experienced intermittent episodes of lower
back pain and numbness. As a result, appellant's orthopedic surgeon
recommended that appellant avoid certain physical activities, e.g.,
bending, twisting, and so on. In 1989, the agency's Medical Director
found that appellant was medically disqualified from his position as a
WG-10 Boiler Plant Operator because the position required heavy physical
labor and because appellant's restrictions were permanent.
Appellant obtained a position as a Supply Clerk.<1> In February 1995,
appellant applied for a WG-11 Boiler Plant Operator--apparently a
supervisory position. Appellant provided a physician's statement
indicating that he would be able to perform the duties of the
above position. Acknowledging the physician's letter, the Medical
Director--having examined appellant and noting that the position was
characterized as "physical"--said that in his opinion, appellant did
not meet the physical requirements of the position and that his existing
limitations should not be removed.
In June 1995, appellant filed the instant EEO complaint alleging
disability discrimination. Allegation 1: Appellant asserted that
the Medical Director, in advising that appellant could not meet the
physical requirements of the position, chose to disregard his personal
physician's recommendation that he could perform the duties of the WG-11
Boiler Plant Operator position. Allegation 2: Appellant also asserted
that in April 1989, the Medical Director chose to misquote and disregard
the recommendations of an orthopedic physician, and had maintained an
inaccurate medical record since that time to appellant's detriment.
Appellant indicated that he was aware of this erroneous information as
the result of a nonselection in 1991. Allegation 3: Appellant contended
that the Medical Director had forced him to take early retirement.
In its final decision (FAD), the agency dismissed appellant's
complaint. The agency dismissed allegation 1 as moot because appellant had
been selected for and placed in the WG-11 Boiler Plant Operator position
for which he had applied. The agency dismissed allegation 2 for untimely
EEO contact. Finally, the agency dismissed allegation 3 on the grounds
that it raised a matter that had not been brought to the attention of
an EEO counselor. In this regard, the agency noted that the allegation
had since been brought to the attention of an EEO counselor and that
appellant had received a notice of right to file on September 9, 1995.
Appellant appealed from the FAD.
The previous decision affirmed the FAD. The previous decision found
that appellant's EEO contact regarding allegation 2 was untimely.
Specifically, the previous decision found that appellant admitted that he
was aware of the "allegedly false medical information" as the result of a
1991 nonselection, but nonetheless waited almost 4 years before raising
the matter with an EEO counselor. Thus, the allegation was not timely
under a continuing violation theory. The previous decision further found
that allegation 1 was moot because the agency provided the SF-50 showing
that appellant was selected for the WG-11 Boiler Plant Operator position.
That is, the agency apparently credited the statement of appellant's
physician over that of the Medical Director as appellant had requested,
and placed him in the position.
In his reconsideration request, appellant contends that the previous
decision erred in affirming the FAD.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence which tends to establish that at least one of the criteria
of 29 C.F.R. �1614.407(c) is met. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
Appellant appears to argue that a continuing violation exists in
this case, which would make his EEO counselor contact timely as to
allegation 2.
The previous decision noted that the existence of a continuing violation
can extend the 45-day limitations period for contacting an EEO counselor.
The previous decision also noted that appellant's prior knowledge or
suspicion of discrimination was relevant to determining the existence of
a continuing violation. Because appellant admitted that he was aware of
the alleged discrimination in 1991 and did not contact an EEO counselor
about the matter until 1995, the previous decision found that appellant
had failed to demonstrate a continuing violation. We find no error in
the previous decision's finding regarding allegation 2.
Appellant also contends that allegation 1 is not moot because he
subsequently took early retirement as a result of the Medical Director's
actions.<2>
Record evidence showed that appellant was placed in the WG-11 Boiler
Plant Operator position. That is, the agency apparently credited the
medical statement of appellant's physician over the recommendation given
by the Medical Director. Consequently, we find that the previous decision
properly determined that allegation 1 was moot. Appellant's assertion
that the Medical Director's actions subsequently forced him to take
early retirement was the subject of another complaint, see EEOC Appeal
No. 01970231 (February 10, 1997), and is more properly addressed therein.
Because we find that appellant's request fails to meet any of the
statutory criteria for reconsideration, we therefore deny the request.
CONCLUSION
After a review of appellant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
appellant's request for reconsideration fails to meet the criteria of
29 C.F.R. �1614.407(c), and the request hereby is DENIED. The decision
in EEOC Appeal No. 01960566 hereby is AFFIRMED.
STATEMENT OF APPELLANT'S RIGHTS
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
DEC 24, 1998
Date Frances M. Hart
Executive Officer
1 In his reconsideration request, appellant asserts that the previous
decision erroneously identified the location of this position as Stockton,
California, and that he always worked in Odgen, Utah. The Commission
finds that the error was harmless.
2 Appellant's complaint regarding his constructive discharge allegation was
addressed in EEOC Appeal No. 01970231 (February 10, 1997). The decision
remanded the complaint to the agency for further processing.