0520120396
10-18-2012
John D. Garvey, Complainant, v. Martha N. Johnson, Administrator, General Services Administration, Agency.
John D. Garvey,
Complainant,
v.
Martha N. Johnson,
Administrator,
General Services Administration,
Agency.
Request No. 0520120396
Appeal No. 0120112406
Agency No. 09-R9-PBS-SF-10
DENIAL
Complainant timely requested reconsideration of the decision in John D. Garvey v. General Services Administration, EEOC Appeal No. 0120112406 (March 23, 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).
The previous decision affirmed the Agency's finding of no discrimination in Complainant's complaint, in which he claimed he had been discriminated against on the basis of reprisal when on February 27, 2009, he became aware of discriminatory remarks made about him on August 24, 2006, and that these remarks negatively influenced the opinion of Agency managers against him, affecting his ability to be promoted at the Agency. He claimed that a manager had referred to him in a meeting as an "EEO high-risk individual." Complainant claimed that in May 2008, another employee was laterally reassigned to a GS-13 Program Analyst position in order to avoid advertising the position and considering Complainant. The previous decision concluded that, assuming Complainant had established a prima facie case of reprisal for the non-selection, the Agency had articulated legitimate, nondiscriminatory reasons for laterally transferring another employee into the position in question. It found that Complainant had not shown these reasons to be pretext for discrimination.
In his request for reconsideration, Complainant argued that the previous decision was clearly erroneous in its finding that he had not been subjected to discrimination. He argued that the managers in his Region had "conspired to systematically discriminate against employees that they targeted," and that he was one of those targets. As evidence for this claim, he submitted a drawing produced in a team-building event held for his Region's managers in July 2010, which depicts a history of challenges dealt with by his larger work unit, management philosophies, action steps, and goals. Complainant claims that he is shown as the "White Male" figure that is labeled as the "major crack in the cement," shown with a human figure on a sidewalk with a crack in it. The Agency submitted a statement in opposition to Complainant's request for reconsideration in which it argued that Complainant had not shown how the drawing had any specific connection to his complaint, or how it demonstrated that the previous decision was clearly erroneous. It urged the Commission to affirm our previous decision.
We find that Complainant has not shown that the previous decision involved a clearly erroneous interpretation of material fact or law. Complainant's submission of the drawing is not sufficient to show that the previous decision erroneously concluded that he had not been discriminated against based on his previous EEO activity. Complainant does not provide a foundation from which we can conclude that the figure in the drawing is meant to be him, as there is no identifying information attached to the figure in question, and Complainant does not explain why we are to conclude it depicts him specifically. Other figures in the drawing are identified by name. Complainant also does not explain why a "major crack in the cement" is supposed to represent his EEO activity. Nor does he draw any specific connection to his non-selection in May 2008 for the Program Analyst position. While that portion of the drawing may have indicated a sentiment held by some in the group at the team-building event that an individual in that Region was some sort of impediment to management goals, it is too speculative to find that the figure is Complainant, and that his EEO activity is referenced.
Therefore, 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. 0120112406 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
October 18, 2012
Date
2
0520120396
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120396