0520120185
04-27-2012
Kenneth D. Dunn, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Kenneth D. Dunn,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Request No. 0520120185
Appeal No. 0120111537
Agency No. 10-00027-03309
DENIAL
Complainant timely requested reconsideration of the decision in Kenneth D. Dunn v. Department of the Navy, EEOC Appeal No. 0120111537 (November 17, 2011). 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 the appellate decision, Complainant alleged that he was subjected to discrimination on the basis of race (African-American) when:
1. On June 6, 2010, he was told by a coworker that he never received a "30 Day Performance Letter" from the supervisor;
2. On July 28, 2010, he received notification from the Office of Special Counsel stating that they would not be taking further actions on Complainant's allegations;
3. On September 15, 2008, he was forced to resign from his position as Deputy Director, Marine and Family Program, MCCS;
4. On September 25, 2008, he submitted a Letter of Resignation to his supervisor;
5. On November 14, 2008, he served his last day as Deputy Director, Marine and Family Programs, MCCS; and
6. On November 25, 2008, he was told by another employee that he (the employee) had been given a year to prove himself, while Complainant was not given the same opportunity.
The Agency dismissed Complainant's complaint for failure to state a claim and untimely EEO Counselor contact. He appealed to the Commission. On appeal, the Commission noted that the Agency's final decision revealed that Complainant had been properly notified that he had thirty calendar days after receipt of its final decision to file an appeal with the Commission. Complainant indicated that he received the Agency's decision on November 20, 2010. He maintained that he mailed his notice of appeal to the Commission on December 18, 2010, and that he called the Office of Federal Operations' Officer of the Day telephone number on an almost daily basis but was told that his appeal had not arrived. Complainant maintained that he was told to resend the materials. In the appellate decision, the Commission noted that it found no evidence that Complainant had mailed his appeal any earlier than January 25, 2011. The Commission also found that Complainant had not offered an adequate justification for an extension of the applicable time limits for filing his appeal. Therefore, the Commission dismissed Complainant's appeal as an untimely appeal.
REQUEST FOR RECONSIDERATION
In Complainant's request for reconsideration, Complainant reiterates his argument that he sent his appeal to the Commission in a timely manner and for a reason unknown to him it was not received by the Commission. Complainant maintains once again that he was told by the Officer of the Day to resend his materials. Complainant then discusses the merits of his complaint.
FINDINGS AND ANALYSIS
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 Commission finds that Complainant failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Specifically, we agree with the previous decisions determination that Complainant provided no evidence that he mailed his appeal any earlier than January 25, 2011. Accordingly, the decision in EEOC Appeal No. 0120111537 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
__4/27/12________________
Date
2
0520120185
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120185