05a60578
05-10-2006
Percy McIntosh, et al. Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.
Percy McIntosh, et al.
Complainant,
v.
John W. Snow,
Secretary,
Department of the Treasury,
Agency.
Request No. 05A60578
Appeal No. 01A51236
Agency No. 01-0019C
DENIAL
Complainant timely requested reconsideration of the decision in Percy
McIntosh et al. v. Department of the Treasury, EEOC Appeal No. 01A51236
(March 10, 2006). 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 filed an appeal with the Commission from an October 20, 2004
final agency action that implemented an EEOC Administrative Judge's (AJ)
decision dismissing a class complaint brought by complainant. In the
class complaint, complainant alleged that the agency failed to qualify
Black males for administrative, professional and managerial positions;
utilized selection procedures in the Fresno area that have had an adverse
impact on the careers of Black males in the area; utilized policies
and procedures in the Fresno area that have resulted in the disparate
treatment of Black males; and retaliated against Black males because of
their EEO activities.
On November 10, 2005, complainant filed a civil action in the
United States District Court for the Eastern District of California.
The assigned case number was 1:05-CV-01258. The previous decision,
finding that the claims raised in the civil action included the same
matters that were raised in the EEO complaint, dismissed complainant's
appeal pursuant to 29 C.F.R. � 1614.409.
In his reconsideration request, complainant maintained that, "[a]lthough
180 days have passed since the filing of the instant appeal, this appeal
should not be dismissed because the complainants have not yet retained
a legal firm for the civil complaint." Complainant also maintained that
the appeal should not be dismissed because the agency did not investigate
the allegations contained in the class complaint.
In order to merit the reconsideration of a prior Commission decision,
the requesting party must submit written argument or evidence which tends
to establish that at least one of the criteria of 29 C.F.R. � 1614.405(b)
is met. The Commission's scope of review on a reconsideration request is
narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989). A reconsideration request is not a second appeal.
Regensberg v. U.S. Postal Service, EEOC Request No. 05900850 (September
7, 1990). After a careful consideration of the previous decision and
the entire record, the Commission finds that complainant's 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 also find no reason
to reconsider this matter on our own motion. The regulation found at
29 C.F.R. � 1614.409 provides that the filing of a civil action shall
terminate Commission processing of an appeal. This is true whether or
not an attorney has been retained to represent complainant in court.
Furthermore, the agency was under no obligation to investigate the
allegations raised in the class complaint because the AJ dismissed the
class complaint for, among other things, failing to meet the commonality
and typicality requirements of 29 C.F.R. � 1614.204(a)(2). Accordingly,
the decision in EEOC Appeal No. 01A51236 remains the Commission's final
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 (P0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
_____05-10-06_____________
Date
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05A60578
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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05A60578