05970416
01-25-1999
Norman R. Johnson, )
Appellant, ) Request No. 05970416
) Appeal No. 01964243 v. )
Agency No. 96008 )
William S. Cohen, )
Secretary, )
Department of Defense, )
Agency. )
________________________________)
DENIAL OF RECONSIDERATION
On February 1, 1997, Norman R. Johnson (hereinafter referred to
as appellant) timely initiated a request to the Equal Employment
Opportunity Commission (the Commission) to reconsider the decision
in Johnson v. Dep't of Defense, EEOC Appeal No. 01964243 (January
22, 1997). 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). For the reasons
set forth herein, appellant's request is denied.
ISSUE PRESENTED
The issue presented is whether appellant's request meets any of the
criteria for reconsideration.
BACKGROUND
In January 1996, appellant filed an EEO complaint alleging race
(Afro-American) and sex (male) discrimination when he was not selected
for a permanent GS-7 Accounting Technician position in May 1994.
At the time of this complaint, appellant held a temporary GS-7 Accounting
Technician position. In early 1994, he applied and was considered for a
permanent GS-7 Accounting Technician position. In late April 1994, the
Selecting Official advised appellant that a female employee (white) had
been selected for the position and that another female employee (white)
had had her temporary GS-7 promotion extended for another year. On May
4, 1994, management officially informed appellant of his nonselection.
In June 1994, appellant's temporary position ended and he returned to
a GS-6 position.
Appellant initiated EEO counseling on the instant complaint on December
12, 1995. The EEO Counselor's Report indicates that in May 1994,
appellant contacted the Denver EEO Office regarding a possible EEO
complaint on his nonselection but said that he was waiting to hear from
Human Resources before he went further with the EEO complaint.
In its final decision (FAD), the agency dismissed the complaint on the
grounds that appellant's contact with the EEO counselor in November
1995 was untimely. Appellant appealed from the FAD, asserting that
he was unaware of the discrimination until Human Resources completed
its investigation in October-November 1995. Upon review, the previous
decision affirmed the FAD, finding that appellant reasonably suspected
the discrimination in May 1994.
In his reconsideration request, appellant asserted that the limitations
period for initiating EEO counselor contact should not apply in his case
because no EEO counselor was available at his facility when the alleged
discriminatory event occurred.
In response, the agency contends that appellant's reasonably suspected
discrimination in May 1994 and that his November 1995 EEO contact
therefore was untimely.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party requesting reconsideration submits written argument or
evidence which tends to establish that at least one of the criteria
of 29 C.F.R. �1614.407(c) is met. For a decision to be reconsidered,
the request must contain specific information that meets the criteria
referenced above.
Appellant contends that the limitations period for initiating EEO contact
should be waived because there was no EEO counselor available at his
facility at the time that this case arose.
Record evidence showed that in May 1994, appellant contacted the Denver
EEO Office regarding the incident at issue in this case. Thus, although an
EEO counselor may not have been available at appellant's facility during
the time period at issue, appellant had access to an EEO counselor in
the Denver EEO Office had he chosen to pursue his complaint at that time.
Because appellant's request fails to meet the criteria for
reconsideration, the Commission denies the request for that reason.
CONCLUSION
After a review of appellant's request for reconsideration, the
agency's response, the previous decision, and the record as a whole,
the Commission finds that appellant's 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. 01964243 remains the
Commission's final decision. There is no further right of administrative
appeal from a decision of the Commission on a request for reconsideration.
STATEMENT OF RIGHTS--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:
January 25, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat