05980105
06-24-1999
Isaiah Darling, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Isaiah Darling v. Department of the Navy
05980105
June 24, 1999
Isaiah Darling, )
Appellant, )
)
v. ) Request No. 05980105
) Appeal No. 01972190
Richard J. Danzig, ) Agency No. 96-00109-011
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DENYING REQUEST FOR RECONSIDERATION
On October 27, 1997, Isaiah Darling (appellant) initiated a request to the
Equal Employment Opportunity Commission (EEOC) to reconsider the decision
in Isaiah Darling v. John H. Dalton, Secretary, Department of the Navy,
EEOC Appeal No. 01972190 (September 26, 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, regulation or material fact,
or misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the previous 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 the previous decision properly affirmed
the agency's dismissal of appellant's complaint.
BACKGROUND
During the period in question, appellant was employed as a Materials
Handler at the U.S. Naval Weapons Station in Yorktown, Virginia.
The record reveals that, on July 8, 1996, an EEO Specialist in the
Facility's EEO Office asked the office's Formal Complaints Manager
(the Responsible Official, RO) why a pre-complaint appellant had filed
was still pending. According to the EEO Specialist, the RO contacted
appellant's representative in an attempt to resolve the question.
Appellant thereafter filed a formal complaint alleging that the
RO had discriminated against him by looking at his complaint file.
The record reveals that, prior to the alleged discrimination, appellant
had specifically requested that the RO have no involvement with his EEO
complaints insofar as the RO had represented the agency against him in
a proceeding before the Merit Systems Protection Board.
In a final decision (FAD) dated November 18, 1996, the agency dismissed
the complaint as moot on the ground that corrective action had been taken.
This action included an apology to appellant and a reminder to the RO not
to become involved with any of appellant's future complaints. Appellant
appealed the dismissal and the prior decision affirmed the FAD.
In support of his request for reconsideration, appellant states that the
RO is now the EEO Manager at his facility. Based on this, appellant
argues that his complaint is not moot because there is even greater
potential for the RO to do the same thing in the future.
ANALYSIS AND FINDINGS
As discussed above, 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 any of
the criteria of 29 C.F.R. �1614.407 is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September 28,
1989). Furthermore, a request to reconsider is not "a form of second
appeal." Regensberg v. United States Postal Service, EEOC Request
No. 05900850 (September 7, 1990); Spence v. Department of the Army,
EEOC Request No. 05880475 (May 31, 1988).
The Commission notes that, in order for a complaint to be rendered
moot, the complainant must have initially been aggrieved. See Henderson
v. Department of the Treasury, EEOC Request No. 05940820 (August 31,
1995). In this case, however, we find appellant has not demonstrated
that he was aggrieved. Specifically, the Commission finds that,
even assuming that the RO looked at appellant's complaint file,<0>
we find that this action did not harm a term, condition, or privilege
of appellant's employment. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (Apr. 21, 1994). Accordingly, we find that
appellant's complaint was properly dismissed.
CONCLUSION
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request fails to meet the criteria of 29 C.F.R. �1614.407(c).
Therefore, it is the decision of the Commission to DENY appellant's
request. The decision in EEOC Appeal No. 01965413 (July 16, 1997)
remains the Commission's final decision. There is no further right of
administrative appeal on a decision of the Commission on this Request
for Reconsideration.
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:
June 24, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
01 The EEO Specialist states that, in fact, the RO never looked at the
complaint file but merely called appellant's representative.