Percy McIntosh, et al. Complainant,v.John W. Snow, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionMay 10, 2006
05a60578 (E.E.O.C. May. 10, 2006)

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