0520120072
04-12-2012
Michael W. Higgins, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Michael W. Higgins,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Request No. 0520120072
Appeal No. 0120110266
Hearing No. 560-2009-00063X
Agency Nos. 9V1M08165
9V1M08461
DENIAL
Complainant timely requested reconsideration of the decision in Michael W. Higgins v. Department of the Air Force, EEOC Appeal No. 0120110266 (September 23, 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).
The previous decision affirmed the Agency's implementation of an Administrative Judge's (AJ's) decision, which was issued following a hearing on Complainant's complaint based on race, disability, age, and reprisal. The AJ found that Complainant had not established that the Agency subjected him to a hostile work environment, or subjected him to disparate treatment discrimination in relation to his ongoing Office of Workers' Compensation Programs (OWCP) claims, his use of leave, or the sending of an e-mail to Complainant's co-workers admonishing them not to engage inappropriate humor in the workplace. The previous decision affirmed the AJ's decision and the Agency's implementation of the decision.
In his request for reconsideration, Complainant argued that the previous decision contained clearly erroneous interpretations of material fact or law. Complainant claimed that the Agency had not followed its own rules and regulations with respect to his OWCP claims, and that this failure was sufficient to prove a case of hostile work environment. He also argued that the Agency' actions caused stress and depression, and that he had shown that the acts were severe and/or pervasive such that a finding should have been made in his favor. The Agency filed a statement in opposition to Complainant's request for reconsideration in which it urged the Commission to deny the request.
We find that Complainant's request for reconsideration fails to show that our previous decision involved a clearly erroneous interpretation of fact or law, or that it would have a substantial impact on the policies, practices or operations of the Agency. Although Complainant iterated the facts of his case at length in his request for reconsideration, we find that he has not shown that the AJ came to an incorrect conclusion when he found that Complainant had not established that the Agency's actions were so severe or pervasive that a hostile work environment existed. Although the AJ did find that the Agency was not justified in taking certain actions, those actions were not able to be aggregated such that a legally hostile work environment was established. The previous decision correctly determined that AJ's decision following a hearing was supported by substantial evidence in the record.
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. 0120110266 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, 794I. 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
April 12, 2012
Date
2
0520120072
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120072