John C. Cougill, Jr., Complainant,v.William M. Daley, Secretary, Department of Commerce, (Bureau of the Census), Agency.

Equal Employment Opportunity CommissionMar 15, 2000
05980883 (E.E.O.C. Mar. 15, 2000)

05980883

03-15-2000

John C. Cougill, Jr., Complainant, v. William M. Daley, Secretary, Department of Commerce, (Bureau of the Census), Agency.


John C. Cougill, Jr. v. Department of Commerce

05980883

March 15, 2000

John C. Cougill, Jr., )

Complainant, )

) Request No. 05980883

v. ) Appeal No. 01976150

) Agency No. 97-63-0260

William M. Daley, )

Secretary, )

Department of Commerce, )

(Bureau of the Census), )

Agency. )

)

DECISION ON REQUEST FOR RECONSIDERATION

INTRODUCTION

On June 17, 1998, John C. Cougill, Jr. (complainant) timely initiated a

request to the Equal Employment Opportunity Commission (the Commission)

to reconsider the decision in John C. Cougill, Jr. v. Department of

Commerce, EEOC Appeal No. 01976150 (May 27, 1998).<1> EEOC Regulations

provide that the Commissioners may, in their discretion, reconsider any

previous Commission decision. 64 Fed. Reg. 37,644, 37,656 (1999)(to be

codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �

1614.405(b)). The party requesting reconsideration must submit

written argument or evidence which tends to establish one or more of

the following two criteria: the appellate decision involved a clearly

erroneous interpretation of material fact or law; or the decision will

have a substantial impact on the policies, practices or operations of

the agency. Complainant's request is denied.

ISSUE PRESENTED

The issue presented is whether the previous decision properly affirmed

the agency's dismissal of complainant's complaint for failure to state

a claim.

BACKGROUND

Complainant filed an EEO complaint alleging that he had been discriminated

against on the basis of reprisal when he was denied employment with the

Bureau of the Census.<2> In November 1993, complainant applied for a

position at the agency as an interviewer, however noting that he objected

to interviewing individuals regarding their race. This was followed by

three (3) years of correspondence by complainant to various individuals

regarding his concern over this issue. In March 1997, complainant

contacted the EEO Counselor's office and filed his complaint against

the agency on April 7, 1997. In the Final Agency Decision (FAD), the

agency stated that complainant failed to show he has been harmed by the

agency's data collection.<3> The agency further found that complainant

was not engaged in protected activity and, therefore, failed to state

a claim on the basis of retaliation. The previous decision summarily

affirmed the agency's FAD.

In his Request to Reconsider (RTR), complainant argues that his "disdain

for `race' data collection" had been known from the first instance he

contacted the agency regarding the statistician position.<4> He also

requests that the Commission treat him equally as those who believe in

"race" so that he may be employed by the agency.

ANALYSIS AND FINDINGS

In order to merit the reconsideration of a prior Commission decision, the

requesting party must submit written argument which tends to establish

that at least one of the criteria of 29 C.F.R. �1614.405(b) is met.

The Commission's scope of review on a request for reconsideration is

narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749

(September 28, 1989). An RTR is not merely a form of a second appeal.

Regensberg v. U.S. Postal Service, EEOC Request No. 05900850 (September

7, 1990).

Complainant's RTR involves the basis of reprisal. Reprisal is a form

of employment discrimination in which an complainant must show that

he or she opposed unlawful discriminatory practice by the agency or

participated in any stage of EEO proceedings. Upon review of the record,

the Commission finds that complainant's claim of reprisal is not within

the purview of the EEO statutes. The agency is authorized to collect

information on ethnicity.<5> Therefore, this activity is not considered

unlawful discrimination. Further, in his complaint and supporting papers,

complainant noted that Title VII authorizes the collection of race data.

This indicates that he did not believe that the agency's practice violated

Title VII. Since complainant has not alleged a protected EEO activity,

the Commission finds that the previous decision properly affirmed the

agency's dismissal of complainant's complaint for failure to state

a claim.

After a careful review of the record, the Commission finds that

complainant's request for reconsideration does not meet the regulatory

criteria of 29 C.F.R. �1614.405(b).

CONCLUSION

After a review of complainant's request for reconsideration, the previous

decision, and the entire record, the Commission finds that complainant's

request does meet the criteria of 29 C.F.R. �1614.405(b), and it is the

decision of the Commission to deny complainant's request. The decision

of the Commission in Appeal No. 01976150 remains the Commission's final

decision. There is no further right of administrative appeal from a

decision of the Commission on a request for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)

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 (Z1199)

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:

March 15, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2 Complainant alleges the basis of reprisal for his objection to race

data collection by the Bureau of the Census.

3 The agency noted that although complainant showed that he was

personally offended by the practice, he failed to demonstrate any loss

or harm related to the collection by the agency.

4 RTR, p.2.

5 See 13 U.S.C. �141 (stating that the Secretary is authorized to obtain

census information) and 62 Fed. Reg. 210, 58782 (1997) (notice by the

Office of Management and Budget's decision concerning the revisions of

ethnic standards for Federal Statistics and Administrative Reporting which

is to be used by the Bureau of the Census in the 2000 decennial census).