0520120356
12-06-2012
Lawrence Battle, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Lawrence Battle,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Request No. 0520120356
Appeal No. 0120083353
Agency No. 2007-21058-FAA-02
DENIAL
Complainant timely requested reconsideration of the decision in Lawrence Battle v. Department of Transportation, EEOC Appeal No. 0120083353 (March 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).
On December 27, 2006, Complainant initiated EEO Counselor contact, and in a formal complaint filed on January 19, 2007, alleged that the Agency subjected him to discrimination and harassment on the bases of race (African American), sex (male), color (brown), disability, age (59 years old), and in reprisal for protected EEO activity when:
1. The Agency ignored, failed, and refused to take action regarding his November 7 and November 22, 2006, letters regarding his return to work;
2. On August 28 2006, the Agency notified Complainant that a job search was not required or necessary because he was not a qualified individual with a disability;
3. The Agency provided Complainant with all disciplinary and adverse actions taken against him from March 1, 1997, through February 2000;
4. The Agency informed Complainant that the last adverse employment action of record was his notice of termination on February 14, 2000; and
5. By letter dated January 22, 1999, the Agency directed Complainant to return to work on February 16, 1999, which exacerbated his medical condition.
In a final decision dated June 11, 2007, the Agency dismissed claims 1, 3, 4, and 5 on the basis that these matters were either pending before or had been decided by the Agency or the Commission. Additionally, the Agency dismissed claim 4 on the basis that that it failed to state a claim. Claims 2, 3, 4, and 5, were further dismissed on the grounds that they were initiated by untimely EEO counselor contact.
In a decision dated February 8, 2008, the Commission affirmed the Agency's dismissal of claims 3, 4, and 5 on the bases that they were initiated by untimely EEO Counselor contact and previously raised by Complainant. Battle v. Dep't of Transportation, EEOC Appeal No. 0120083353. The Commission rejected the Agency's dismissal of claim 1 on the basis that it was previously raised but determined that the record was unclear whether claim 1 was a collateral attack on the Office of Workers' Compensation Program's (OWCP) process. The Commission also determined that claim 2 should be considered with claim 1 as part of a possible harassment claim. The Commission remanded claims 1 and 2 to the Agency for a supplemental investigation to determine whether these claims should be accepted or dismissed.
On June 16, 2008, the Agency issued a final decision in which it dismissed claim 1 on the bases that it failed to state a claim and stated the same claim raised in a previous complaint. The Agency dismissed claim 2 on the basis that it was not raised with an EEO Counselor in a timely manner. In our previous decision, the Commission affirmed the Agency's dismissal of claim 1 on the basis that it failed to state a claim, and claim 2 on the basis that it was initiated by untimely EEO Counselor contact. The Commission further determined that claims 1 and 2 were not sufficiently severe or pervasive to state a claim of harassment.
In his reconsideration request, Complainant maintains that claim 2 is timely because it is part of a continuing violation of harassing actions by the Agency. We note 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) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, 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. Complainant has not done so here. Specifically, Complainant has not shown that the previous decision erred in finding that the alleged actions were not severe or pervasive enough to constitute a hostile work environment. Likewise, as noted in our previous decision, Complainant did not allege that he was entitled to reinstatement in this particular complaint, and as such, Complainant failed to show how the alleged actions involved any harm or loss to the conditions, terms, or privileges of his employment that would render him aggrieved. But see Battle v. Dep't of Transportation, EEOC Appeal No. 0120064011 (Nov. 29 2006) (Complainant's allegation that Agency refused to reinstate him as part of OWCP's Back to Work program states a claim).
Therefore, 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. 0120083353 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
December 6, 2012
Date
2
0520120356
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013