05a51156
10-13-2005
Lawrence Bannister, Complainant, v. Micheal Chertoff, Secretary, U.S. Department of Homeland Security (Federal Emergency Management Agency) Agency.
Lawrence Bannister v. U.S. Department of Homeland Security
05A51156
October 13, 2005
.
Lawrence Bannister,
Complainant,
v.
Micheal Chertoff,
Secretary,
U.S. Department of Homeland Security
(Federal Emergency Management Agency)
Agency.
Request No. 05A51156
Appeal No. 01A51939
Agency No. 03-024
DENIAL
Lawrence Bannister (complainant) timely requested reconsideration of the
decision in Lawrence Bannister v. U.S. Department of Homeland Security,
EEOC Appeal No. 01A51939 (July 7, 2005). 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) (2004).
After reconsidering 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. In our previous decision, we found that because the
agency's supplemental investigation into complainant's original complaint
of discrimination was still ongoing, we dismissed his appeal as premature.
When we rendered our decision, we reviewed the matter de novo, carefully
considering all of the record evidence and arguments on appeal.
In his request, complainant argues, among other things, that our prior
decision misinterpreted material facts in his case and overlooked
his main issue on appeal because we did not address his allegation of
agency deception. We disagree. We find that in our prior decision
we reviewed all pertinent facts, but dismissed the matter because his
claim was not ripe for review. We find no error in our interpretation of
material fact and law. The record is clear, after the alleged settlement
breach, complainant opted to reopen his original discrimination complaints
rather than request specific implementation of the settlement agreement.
The agency is still in the process of investigating the matter. We remind
complainant that he may only appeal to the Office of Federal Operations
an agency's dismissal of or final action on a complaint. See MD-110,
Ch. 9, II, D, III, A (Nov. 9, 1999). Here, the agency has not yet taken
any final action. Thus, we continue to stand behind our prior decision
and find that the arguments complainant presents in their request fail
to give us reason to reconsider the decision. As such, the decision
in EEOC Appeal No. 01A51939 remains the Commission's final 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 (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:
October 13, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations