0520090363
07-14-2009
Gregory Davis, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Gregory Davis,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Request No. 0520090363
Appeal No. 0120090352
Agency No. ARRIA08JUL02732
DENIAL
Complainant timely requested reconsideration of the decision in
Gregory Davis v. Department of the Army, EEOC Appeal No. 0120090352
(March 10, 2009). 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).
On request, complainant argues that the previous decision did not
fairly characterize his complaint. On appeal he did not contest the
final agency decision's characterization of his complaint, which was
utilized by the previous decision, with some added detail. The previous
decision was not factually clearly erroneous in doing so. In finding
that an allegation that a co-worker tried to run complainant over on
a road using his personal vehicle failed to state a claim, the previous
decision found it occurred away from the workplace and outside duty hours,
that the matter was reported to [base] police and being investigated as
a potential criminal matter, and hence it was not clear the incident
impacted complainant's terms, conditions or privileges of employment.
On request, complainant argues that the incident occurred on base, that
the entire base is the workplace, and the base police did not even charge
the co-worker with a traffic violation. While the alleged incident was on
base, it occurred after complainant left work for the day while crossing
the street to presumably go to where his car was parked. The previous
decision did not involve a clearly erroneous interpretation of fact or
law in finding this matter failed to state a claim. Complainant also
argues that in a written statement by the agency's Chief EEO Officer
admitted to erroneously dismissing his complaint. Complainant misreads
the statement. The statement indicates that the agency initially had
insufficient information to make a determination on whether to accept
or dismiss the complaint, but had sufficient information to do so after
complainant responded to the agency's request for clarification.
After reconsidering 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. 0120090352 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 (P0408)
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 (Z1008)
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
July 14, 2009
__________________
Date
2
0520090363
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013