0520120465
11-01-2012
Jorge A. Urquijo, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.
Jorge A. Urquijo,
Complainant,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Request No. 0520120465
Appeal No. 0120100424
Agency No. 20060082HQ
DENIAL
Complainant timely requested reconsideration of the decision in Jorge A. Urquijo v. Environmental Protection Agency, EEOC Appeal No. 0120100424 (May 2, 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).
In his underlying complaint, Complainant alleged a number of issues. The Agency issued a decision finding that he was not discriminated against as alleged. Complainant appealed the Agency's decision to the Commission. On appeal, Complainant withdrew his claims of age, national origin, race, harassment and constructive discharge claims and requested that the Commission review only the claim of reprisal. In Urquijo v. Environmental Protection Agency, EEOC Appeal No. 0120100424 (May 2, 2012), the Commission found that Complainant failed to establish that he was retaliated against as alleged. Complainant requested reconsideration.
In his request for reconsideration, Complainant argues that the appellate decision contained erroneous interpretations of material fact because it included background evidence regarding incidents that occurred in 2003. Complainant states that his only claim of discrimination on appeal was retaliation for opposing unlawful discrimination and engaging in protected activity during 2004. Complainant also argues that the record clearly demonstratse that there was a nexus between the protected activity and the Agency's actions. Complainant states that the Agency officials knew of his opposition to discriminatory conduct. Complainant also argues that the Commission committed reversible error when it determined that he failed to establish his claim of reprisal because he did not witness the harassment for which he complained. Complainant also reiterates his arguments on appeal regarding the Agency's action after he omplained about an incident of sexual harassment that occurred in 2004. Complainant argues that the Commission erred in finding that he was not retaliated against as alleged.
We find that Complainant's contentions in his request do not establish that the appellate decision contained clearly erroneous interpretations of material fact or law or would have substantial impact on the Agency's policies, practices, or operations of law. Specifically, we find that the inclusion of background facts regarding incidents that occurred prior to 2004 does not demonstrate that the appellate decision involved errors of fact or law. Further, we find that the appellate decision did not find that Complainant was not retaliated against because he did not witness the alleged-harassment. Rather, the previous decision found that "despite Complainant's . . . arguments on this subject, we find no evidence of any action taken against Complainant in response to his report of harassment." Furthermore, nothing in the record supports his claim that the appellate decision was not supported by the evidence in the record.
With regard to contentions previously articulated on appeal, we remind Complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-17 (November 9, 1999). A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. The Commission has long held that it is improper to simply reargue the facts in a reconsideration request. See Bartlomain v. USPS, EEOC Request No. 05910436 (October 10, 1991). Accordingly, we find that Complainant failed to establish that the Commission should grant his request for reconsideration.
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. 0120100424 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
____11/1/12____________________
Date
3
0520110639
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110452