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).