John Schomach, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 8, 2000
05980725 (E.E.O.C. Dec. 8, 2000)

05980725

12-08-2000

John Schomach, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


John Schomach v. Department of the Army

05980725

December 8, 2000

.

John Schomach,

Complainant,

v.

Louis Caldera,

Secretary,

Department of the Army,

Agency.

Request No. 05980725

Appeal No. 01963197

Agency No. 93-08-0086

DENIAL OF REQUEST FOR RECONSIDERATION

The complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in John

Schomach v. Department of the Army, EEOC Appeal No. 01963197 (March

24, 1998).<1> EEOC Regulations provide that the Commission may, in

its discretion, 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).

In his original complaint, complainant alleged that he was discriminated

against on the basis of age (60) when he was not repromoted after

being downgraded from a GS-11 grade to a GS-9 grade as the result of

a reduction-in-force (RIF) in 1977. Although complainant was entitled

to receive noncompetitive consideration for repromotion to his former

grade, he testified that he never applied for a position but that

a position should have been created for him. Yet creation of such

a position would have had to have been justified and then opened to

competition. In addition, on three separate occasions, complainant's

second-line supervisor requested that complainant be promoted to the

GS-11 grade, but a 1990 desk audit found that complainant's duties did

not justify an upgrade. Furthermore, the agency found that complainant

did not establish a prima facie case of age discrimination, as he failed

to present a similarly situated employee not in his protected group who

was treated more favorably, or show that, but for his age, he would have

been repromoted. Accordingly, the agency issued a final decision (FAD)

finding no discrimination, and on appeal, the Commission affirmed the

FAD.

In his request for reconsideration, complainant asserts that the statement

that he did not apply for promotions is incorrect, and encloses two

forms showing that he did, in fact, apply for two promotions in 1985.

He also encloses the Commanding Officer's Policy Statement on priority

placement consideration, which provides evidence that complainant should

have received special priority promotion consideration and so been

repromoted. In addition, complainant includes two agency commendations

and one performance evaluation in which he is rated �exceptional,�

as further evidence that he deserves repromotion to GS-11. Finally,

complainant encloses a copy of an E-mail �Harassment Alert,� as evidence

that it was impossible for him to be repromoted because of the existing

hostile work environment. The agency did not reply to complainant's

request for reconsideration.

The Commission evaluates the new evidence submitted by complainant as

follows: As to the two promotions for which complainant applied in 1985,

we note that according to EEOC Regulation � 1614.105(a)(1), an aggrieved

person must contact the EEO Counselor within 45 days of the personnel

action alleged to be discriminatory. As complainant would have learned

of his nonselection for either promotion within a year at most of his

applying, but did not timely contact an EEO Counselor about his alleged

discriminatory nonpromotion, we find this evidence to be untimely

proffered on the issue of his failure to be repromoted on account of

his age. As to the policy statement on priority placement consideration,

we find it inconclusive evidence that management did not give first

consideration to complainant as a repromotion eligible when he applied

for the two positions in 1985, since a suitable position for him to be

repromoted into might not have existed at that time, given the RIF which

the agency facility had undergone in 1977. Moreover, as complainant did

not apply for any vacancies, other than the two mentioned above, he could

not have received priority placement consideration in the first place.

Finally, as to the �Harassment Alert,� we find this irrelevant to the

issue of whether complainant received priority placement consideration

for the two positions for which he did apply in 1985, as the message

was not sent until 1993, almost 8 years later, and could have reflected

different working conditions.

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

previous decision, and the entire record, the Commission therefore 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. 01963197 remains the Commission's

final decision. There is no further right of administrative appeal on

the decision of the Commission on this request for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 8, 2000

Date

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 29 C.F.R. Part 1614 in deciding the

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

Commission's website at www.eeoc.gov.