0520090672
12-10-2009
Marc D. Mopsick, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.
Marc D. Mopsick,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.
Request No. 0520090672
Appeal No. 0120073654
Agency No. NIHNIMH06-0001
DENIAL
Complainant timely requested reconsideration of the decision in Marc
D. Mopsick v. Department of Health & Human Services, EEOC Appeal
No. 0120073654 (September 18, 2009). 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).
Complainant alleged that the agency breached its July 19, 2006,
settlement agreement into which the parties had entered. The agency
issued a final decision finding that it had not breached the agreement.
In its appellate decision, the Commission also found that the settlement
agreement had not been breached. The Commission determined that the
agency had substantially complied with the settlement with regard to the
date complainant would be returned to an IT position. The Commission
also noted that complainant's career-ladder promotion potential had
been evaluated and the decision to promote or not promote complainant
had been at the discretion of the Chief, as was provided for in the
settlement agreement. Further, the Commission noted that the terms
of the settlement agreement did not specify the manner in which the
evaluation could be conducted; as such, the fact that email was used was
not enough to show breach. Finally, the Commission advised complainant
that, to the extent that he believed that he was being subjected to
further discrimination, such claims were to be processed as a new,
separate complaint, rather than as a breach allegation.
In complainant's request for reconsideration, he contends that the
Commission's decision was both incorrect and incomplete. Complainant
contends that despite having a recommendation that he should be promoted
the new Chief did not believe that he was bound to the settlement
agreement and refused to promote complainant until he had the opportunity
to personally observe complainant's work. Complainant also contends that
the settlement agreement was breached due to the outrageous behavior
of his former supervisor. He maintains that he has a witness who will
testify that the former supervisor did "much harm in his work environment
and with that damage, he has probably never fully recovered to have the
confidence he needs to get that next-step job." Complainant asks that
the matter be reopened
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. 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.
Upon review of this matter we find that complainant's contentions in his
request for reconsideration were previously addressed in the appellate
decision. Notwithstanding, the Commission reiterates that the settlement
agreement did not guarantee a promotion to complainant but provided that
"the Chief would consult with [Ph.D.] when evaluating complainant's
potential for promotion" but it also specifically indicated that the
Chief would make the ultimate decision whether to promote complainant.
Further, we indicated that, even assuming that the Chief's reasons for
promoting complainant were disingenuous and based on misinformation,
the terms of the agreement left the decision to promote complainant
to the Chief's discretion. The Commission also advised complainant to
seek additional EEO Counseling if he believed he was being discriminated
against.
Based upon a review of the record and for the foregoing reasons, the
decision in EEOC Appeal No. 0120073654 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 (P0408)
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 (Z1008)
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 10, 2009
Date
2
0520090672
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0520090672