05980347
11-04-1999
Martin Johnson, Jr., Appellant, v. Lawrence H. Summers, Secretary, Department of Treasury, Agency.
Martin Johnson, Jr., )
Appellant, )
) Request No. 05980347
v. ) Appeal No. 01973849
) Agency No. 97-2063
Lawrence H. Summers, )
Secretary, )
Department of Treasury, )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
On February 7, 1998, Martin Johnson, Jr. (the appellant) timely
initiated a request to the Equal Employment Opportunity Commission (the
Commission) to reconsider the decision in Martin Johnson, Jr. v. Robert
E. Rubin, Secretary, Department of Treasury, EEOC Appeal No. 01973849
(January 8, 1998). EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law or regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3).
In his formal complaint, appellant alleged that on the basis of reprisal
(prior EEO activity) his applications for various positions under
seven vacancy announcements were incorrectly ranked resulting in his
non-selection. These were (1) Plate Maker, Announcements 92-0093-ONS;
92-0230-ONS; 94-0109-CMP; and 96-009-CAM; (2) Plate Printer Apprentice,
Announcement 92-0113-RMM; (3) Stationary Engineer, Announcement
94-0048-ONS; and (4) Ink Maker, Announcement 96-0017-CAM.
In its final decision, the agency dismissed the allegations related to
issue (1) for stating the same claim that is pending before or has been
decided by the agency or Commission. The agency stated that appellant
filed two prior EEO complaints for non-selection for those same vacancy
announcements.<1> The agency dismissed issues (2) and (3) for failing to
timely contact an EEO Counselor. The agency stated that appellant did
not seek EEO counseling for the non-selections until November 4, 1996,
yet he wrote to a U.S. Senator expressing his suspicion of discrimination
on January 23, 1996. The agency accepted issue (4) for investigation.
Appellant appealed and the Commission affirmed the agency's decision.
Appellant now requests reconsideration arguing that the duties of a Plate
Maker as described in Announcements 92-0093-ONS and 92-0230-ONS are those
of electroplating, rather than off-set printing. He states that he is
seeking reconsideration based on the fact that the job description, for
which he was not the best qualified, did not match the job classification.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that stated the same claim
that is pending before or has been decided by the agency or Commission.
A review of the record supports the agency's finding that appellant
raised the issue of his non-selection for the positions identified in
issue (1) in complaints TD 95-2220 and TD 96-2255.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with a counselor within 45 days of the date
of the matter alleged to be discriminatory or, in the case of personnel
action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) provides that the agency or
the Commission shall extend the 45 day lime limit in paragraph (a)(1)
of this section when the individual shows that he or she was not notified
of the time limit and was not otherwise aware of them, that he or she
did not know and reasonable should not have known that the discriminatory
matter or personnel action occurred, that despite due diligence he or she
was prevented by circumstances beyond his or her control from contacting
the counselor within the time limits, or for other reasons considered
sufficient by the agency or the Commission.
The Commission has adopted a "reasonable suspicion" standard, as opposed
to a "supportive facts" standard, to determine when the limitation period
is triggered. See Ball v. USPS, EEOC Request No. 05880247 (July 6, 1988)
A review of the record supports the agency's finding that appellant
suspected discrimination in his non-selection for the positions listed
in issues (2) and (3) by at least January 23, 1996. Therefore, his
EEO Counselor contact in November 1996, was untimely, whether for
non-selection or job classification.
After a review of the appellant's request to reconsider, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. �1614.407(c), and it is the
decision of the Commission to deny the request. The decision in EEOC
Appeal No. 01973849 (January 8, 1998) remains the Commission's final
decision. There is no further right of administrative appeal on the
decision of the Commission on this Request for Reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
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. It
is the position of the Commission that 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. You should
be aware, however, that courts in some jurisdictions have interpreted
the Civil Rights Act of 1991 in a manner suggesting that a civil action
must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you
receive this decision. To ensure that your civil action is considered
timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS
from the date that you receive this decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
November 4, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat1 These were
agency nos. TD-95-2220 filed May 1,
1995, and TD 96-2255 filed July
12, 1996.