05990010
03-29-2000
John M. Lenihan, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy,) Agency.
John M. Lenihan v. Department of the Navy
05990010
March 29, 2000
John M. Lenihan, )
Complainant, )
)
v. ) Request No. 05990010
) Appeal No. 01974237
Richard J. Danzig, ) Agency No. DON-96-00178-011
Secretary, )
Department of the Navy,)
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
Complainant timely initiated a request for the Equal Employment
Opportunity Commission (EEOC or Commission) to reconsider the decision
in John M. Lenihan v. Department of the Navy, EEOC Appeal No. 01974237
(August 28, 1998). EEOC regulations provide that the Commissioners may,
in their discretion, reconsider any previous decision where the party
demonstrates that: (1) the previous decision involved clearly erroneous
interpretation of material fact or law; or (2) the decision will have a
substantial impact on the policies, practices, or operation of the agency.
29 C.F.R. �1614.405(b).<1>
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. Dept. of the Air Force, EEOC Request No. 05890749
(September 28, 1989). A request for reconsideration is not merely a form
of a second appeal. Regensberg v. U.S. Postal Service, EEOC Request No.
05900850 (September 7, 1990). 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).
Complainant argued, both below and on request for reconsideration, that
the agency breached a settlement agreement by engaging in various acts
of reprisal. Complainant notes that the settlement agreement contained
a specific provision stating that the agency would "take no reprisal
action" against complainant for filing the complaint which was settled
by the settlement agreement.
The Commission's regulations provide that if a complainant believes that
the agency has failed to comply with the terms of a settlement agreement,
i.e., is in breach of the agreement, he or she may request that the terms
of the agreement be specifically implemented or, alternatively, that the
complaint be reinstated for further processing. 29 C.F.R. �1614.504(c).
However, the Commission has held that an allegation of reprisal or
further discrimination in violation of a settlement agreement's "no
reprisal" or "no discrimination" provision is to be processed as a
separate complaint, and not as a breach of the settlement agreement.
Id.; Bindal v. Department of Veterans Affairs, EEOC Request No. 05900225
(August 9, 1990).
Accordingly, should complainant still wish to pursue his allegations of
reprisal, he must contact an EEO Counselor. The previous decision will
be modified to reflect that if complainant contacts an EEO Counselor
within 15 days of the date on which he receives this decision, the
date of initial contact with the EEO Counselor will be deemed to be the
date on which he first notified the agency of the alleged breach of the
settlement agreement.
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 not meet the criteria of 29 C.F.R. �1614.405(b), and it is
therefore the decision of the Commission to DENY complainant's request.
The decision of the Commission in Appeal No. 01974237 is MODIFIED to
allow complainant 15 days from his receipt of this decision to contact
an EEO Counselor with his allegations of reprisal, and, as modified,
is AFFIRMED. There is no further right of administrative appeal from
a decision of the Commission on a request for reconsideration.
STATEMENT OF RIGHTS
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 29, 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 Equal Employment Assistant
1On 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.