0520120496
02-01-2013
James K. Hall, Complainant, v. Dr. Rebecca Blank, Acting Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.
James K. Hall,
Complainant,
v.
Dr. Rebecca Blank,
Acting Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.
Request No. 0520120496
Appeal No. 0120103196
Agency No. 085400170
DENIAL
Complainant timely requested reconsideration of the decision in James K. Hall v. Department of Commerce, EEOC Appeal No. 0120103196 (May 25, 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).
BACKGROUND
In the underlying case, Complainant alleged that the Agency discriminated against him on the bases of race (African-American), sex (female), age (over 40) and in reprisal for prior EEO activity when he was not timely placed on the Hardship Transfer Candidate List, and as a result, he was denied eligibility to transfer to the El Paso Weather Forecast Office in Santa Teresa, New Mexico, and other vacancies in the area. The EEOC Administrative Judge (AJ) granted summary judgment in favor of the Agency, and the Agency issued a final order adopting the AJ's decision. The appellate decision affirmed the Agency's final order, finding that the AJ's issuance of a decision without a hearing was appropriate and that the preponderance of the evidence did not establish that unlawful discrimination occurred.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant requests that the Commission reconsider and overturn its appellate decision. Complainant argues that the decision involved a clearly erroneous interpretation of genuine issue of material fact. Complainant contends that there had been no examination of his application at the time that Agency representatives requested information regarding his Union status. Additionally, Complainant argues that there has been no consideration of the additional information which was faxed to the Commission on May 14, 2012. Complainant contends that this new information demonstrates that the Agency changed an existing document and failed to provide accurate information previously.
ANALYSIS AND FINDINGS
The Commission has consistently held that arguments raised for the first time on request for reconsideration cannot be considered at this stage of the proceedings. Choates v. Federal Deposit Insurance Corporation, EEOC Request No. 05970012 (May 21, 1998); Calloway v. Dep't of the Army, EEOC Request No. 05930911 (Mar. 17, 1994); Stiles v. Dep't of Transportation - FAA, EEOC Request No. 05940525 n.4 (Feb. 9, 1994); Valverde v. Department of Agriculture, EEOC Request No. 05900961 (Oct. 19, 1990). Therefore the Commission will not consider the new arguments raised by Complainant here.
Complainant is reminded that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9 � VII.A. (Nov. 9, 1999). Because Complainant has not put forth any arguments which the Commission finds to be material to the outcome of the underlying decision, or that were not previously considered in rendering the underlying decision, the Commission finds that Complainant has not demonstrated that the underlying decision involved a clearly erroneous interpretation of material fact or law. Neither has Complainant argued or demonstrated that the underlying decision would have a substantial impact on the policies, practices, or operations of the Agency.
CONCLUSION
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. 0120103196 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
___2/1/13_______________
Date
2
0520120496
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120496