0520170138
04-17-2017
Raleigh T.,1 Complainant, v. Kathleen McGettigan, Acting Director, Office of Personnel Management, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Raleigh T.,1
Complainant,
v.
Kathleen McGettigan,
Acting Director,
Office of Personnel Management,
Agency.
Request No. 0520170138
Appeal No. 0120142638
Hearing No. 550-2013-00207X
Agency No. 2013-016
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120142638 (November 22, 2016). 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(c).
In the previous decision, the Commission affirmed the Agency's final order adopting the decision of an Equal Employment Opportunity Commission Administrative Judge (AJ) who issued a decision without a hearing. We found that the AJ properly issued a decision without a hearing. We further found that Complainant did not show that the Agency discriminated against him on the basis of disability and in retaliation for prior protected activity when (1) on February 15, 2012, it failed to process his application under Schedule A guidelines for the position of Archivist (Processing), GS-1420-09, with the Department of the Interior, National Park Service; and (2) on February 15, 2012, it failed to take action on Complainant's request for reasonable accommodation relative to the processing of his application.
Assuming, without deciding, that Complainant was an individual with a disability, we found that the Agency provided legitimate, nondiscriminatory reasons for its actions. In that regard, we noted that the Agency could not consider Complainant eligible for the position at issue because he did not submit a complete application. Although Complainant provided information about his graduate-level courses, he did not provide his undergraduate transcript. Complainant asserted that the Agency's action was discriminatory, but he did not provide evidence to support his claim. Accordingly, we concluded that Complainant did not establish that the Agency discriminated against him based on disability or prior EEO activity with respect to Claim 1.
With respect to Claim 2, we noted that Complainant asked the Agency to appoint a panel of experts to ensure that his application was processed fairly. He did not respond to a National Park Service Human Relations Specialist's request that he clarify how the establishment of a panel would accommodate his disability. Noting that Complainant did not respond to the request and did not explain how the panel would constitute a reasonable accommodation, we found that Complainant did not establish that the Agency unlawfully denied him a reasonable accommodation.
In his request for reconsideration, Complainant argues that he was qualified for the Archivist (Processing) position at issue in this complaint because the Agency found him to be qualified for an Archivist (Processing) position in 2011. He also argues that the instant complaint should have been consolidated with prior, 2011 complaints challenging his non-selection for Archival Series positions. According to Complainant, evidence in the other cases establishes that the Agency had determined that he was qualified for archival positions.
We remind Complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Aug. 5, 2015), at 9-18; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here.
Complainant has not refuted the Agency's assertion that he did not submit an undergraduate transcript with his application. Although Complainant may have submitted adequate documentation with a prior application for an Archivist position, he has not shown that he submitted the necessary documentation with the application for the position at issue here.
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(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120142638 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
__4/17/17________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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