James D. McCabe, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionAug 3, 2009
0520090534 (E.E.O.C. Aug. 3, 2009)

0520090534

08-03-2009

James D. McCabe, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.


James D. McCabe,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Request No. 0520090534

Appeal No. 0120091427

Agency No. ARUSMA08OCT04341

DENIAL

The agency timely requested reconsideration of the decision in James

D. McCabe v. Department of the Army, EEOC Appeal No. 0120091427 (June

16, 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).

In our prior decision, the Commission reversed the agency's dismissal of

claim (a) for failure to state a claim. In claim (a), complainant alleged

that the agency failed to issue him an annual appraisal for August 2007

- July 2008. The agency found that this matter failed to state a claim

because complainant spent most of his time as a union representative and

therefore was not entitled to an appraisal. The agency dismissed claim

(b) on the grounds of untimely EEO Counselor contact. The agency found

that complainant waited over six months to initiate contact regarding

his award. The Commission affirmed the dismissal of claim (b).

In its request, the agency reiterates its assertion that claim (a)

fails to state a claim. The agency argues that complainant did not

suffer any injury or harm because he was not entitled to receive a

performance evaluation. The agency asserts that federal regulations

prohibit an employee who is on 100% official time to receive any

performance evaluation. With respect to complainant's desire to

receive an evaluation in light of a possible Reduction in Force (RIF),

the agency asserts that his concerns are misplaced. According to the

agency, no RIF procedures have been initiated and if a RIF were to occur,

regulations allow for a modal rating to be issued.

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 agency merely repeats and elaborates upon the

arguments it presented on appeal. As stated in our prior decision,

the agency has inappropriately addressed the merits of claim (a).

The decision in EEOC Appeal No. 0120091427 remains the Commission's

decision. There is no further right of administrative appeal on the

decision of the Commission on this request. The agency shall comply

with the Order as set forth below.

ORDER (E0408)

The agency is ordered to process the remanded claim in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claim within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report shall

be submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 77960, Washington,

DC 20013. The agency's report must contain supporting documentation,

and the agency must send a copy of all submissions to the complainant.

If the agency does not comply with the Commission's order, the complainant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The complainant also has the right to file a civil action

to enforce compliance with the Commission's order prior to or following

an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,

1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant

has the right to file a civil action on the underlying complaint in

accordance with the paragraph below entitled "Right to File A Civil

Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for

enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0408)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action after

one hundred and eighty (180) calendar days of the date you filed your

complaint with the agency, or filed your appeal with the Commission.

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. Filing a civil

action will terminate the administrative processing of your complaint.

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

August 3, 2009

__________________

Date

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0520090534

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0520090534