John M. Lenihan, Complainant,v.Richard J. Danzig, Secretary, Department of the Navy,) Agency.

Equal Employment Opportunity CommissionMar 29, 2000
05990010 (E.E.O.C. Mar. 29, 2000)

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.