0520120197
05-15-2012
Lenard A. Footland, Complainant, v. Gary Locke, Secretary, Department of Commerce (Patent and Trademark Office), Agency.
Lenard A. Footland,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.
Request No. 0520120197
Appeal No. 0120071973
Hearing No. 57020060056X
Agency No. 0656074
DENIAL
Complainant timely requested reconsideration of the decision in Lenard A. Footland v. Department of Commerce, EEOC Appeal No. 0120071973 (November 14, 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 learned that he was not selected for any of five Administrative Patent Judge vacancies. Believing that he was discriminated against based on his race, sex and prior EEO activity he filed a formal complaint seeking certification as a class complaint. The Class complaint was framed as, "all Caucasian males at the Patent and Trademark Office who, since 1994, were qualified for promotion but not selected and minorities or females were selected." An EEOC Administrative Judge (AJ) issued a decision denying certification of the class finding that a viable class had not been identified. The Agency fully implemented the AJ's decision. The Commission affirmed the Agency's final decision finding that Complainant's imprecise definition of the class resulted in the inability to identify class members or even potential class members. Therefore, the previous decision found that Complainant failed to meet his burden in showing that the element of numerosity had been met.
REQUEST FOR RECONSIDERATION
In Complainant's request for reconsideration he maintains that the Commission erred when it found that he had failed to meet the necessary element for a class complaint. He argues that the Agency's practice of not selecting Caucasian men will have a significant impact on the practices and operations of the Agency. He explains that Caucasian males are being excluded from employment even though they are the majority of the workforce and therefore should have a larger presence at the Agency. He maintains that it's the Agency's Diversity Policy/Affirmative Action Plan that is causing discrimination against white males. He asserts that these programs should be eliminated.
Further, he maintains that the composition of the class involved is capable of definition with "mathematical exactitude." He argues that the burden should be upon the Agency to show that it is not promoting discriminatory practices. Complainant asserts that the disproportional hiring and representation of minorities and females as patent examiners establishes that the Patent Office has policies that discriminate against Caucasian males.
ANALYSIS AND FINDINGS
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. We find that other than Complainant's conclusory statements and arguments previously presented, he has not provided any evidence which supports his claim 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. Accordingly, the decision in EEOC Appeal No. 0120071973 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
____5/15/12______________
Date
2
05-2012-0197
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120197