05a00176
04-26-2000
Theodore McGary, Complainant, Louis Caldera, Secretary, Department of the Army, Agency.
Theodore McGary v. Department of the Army
05A00176
April 26, 2000
Theodore McGary, )
Complainant, ) Request No. 05A00176
) Appeal No. 01991658
) Agency No. AQWFDF091010320
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
____________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission to reconsider its decision in Theodore McGary v. Army, EEOC
Appeal No. 01991658 (September 9, 1999).<1> EEOC Regulations provide
that the Commission may, in its discretion, 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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.405(b)).
After a review of the complainant's request for reconsideration, 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. 01991658 remains final. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
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:
April 26, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
FOR OFO INTERNAL CIRCULATION ONLY
Initial
Date
To: Carlton M. Hadden
Acting Director, Office of Federal Operations
To: Hilda Rodriguez
Request Number 05A00176
Appeal Number 01991658
Agency Number AQWFDF091010320
Hearing Number
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:
Title
Name
Initial
Date
Attorney: Oscar M. Holloway, II
April 24, 2000
Supervisor: Mary Jean Moore
Division Director: Marie Fitzgerald
Complainant(s): Theodore McGary
Agency: Army
Decision: Denied
Statute(s) Alleged: Title VII
Basis(es) Alleged: RB, OR
Issue(s) Alleged: C2
Where Discrimination Is Found (Only):
(A) Basis(es) for Finding:
(B) Issues in Finding:
Typist/date/diskette
oh0/April 24, 2000/p:x folder
Spell Check YES
Team Proofed
Date
05 CASE DISPOSITION SHEET
Complainant
Agency
Request No.
Theodore McGary
Army
05A00176
Check ALL applicable codes
PROCEDURAL DECISION
No finding by OFO on allegations of discrimination or no discrimination,
or on allegations of breach of settlement agreement or lack of breach
of settlement agreement.
X 3K - Procedural Decision
MERITS DECISION
Must include finding by OFO of discrimination or no discrimination,
or of breach of settlement agreement or lack of breach of settlement
agreement on at least one issue.
? 4A - Merits Decision
? 6Q - 01 decision was procedural
? 6R - 01 decision was merits
? 6Q - 01 decision was procedural
? 6R - 01 decision was merits
? 3L - RTR vacated / remanded ALL of agency's merits decision
? 3M - RTR reversed / remanded agency's procedural decision
? 6E - RTR found discrimination
List Basis codes:
List Issue codes:
? 6F - RTR found no discrimination
? 6H - RTR affirmed 01 decision
? 6I - RTR reversed 01 decision
? 6J - RTR modified 01 decision (NOTE: if affirmed in part and reversed
in part, then 3M code required)
? 6M - RTR vacated 01 decision (NOTE: 01 decision MUST be merits and
ALL issues vacated)
? 6U - Reconsider on own motion
? 6S - RTR found settlement breach
? 6T - RTR found no settlement breach
? 6H - RTR affirmed 01 decision
? 6I - RTR reversed 01 decision
? 6J - RTR modified 01 decision (affirmed in part, reversed in part)
? 6U - Reconsider on own motion
? 4H - RTR affirmed FAD
? 4I - RTR reversed FAD
? 4J - RTR modified FAD
? 4H - RTR affirmed FAD
? 4I - RTR reversed FAD
? 4J - RTR modified FAD (NOTE: if affirmed in part and reversed in part,
then 3L code required if at least one issue is remanded)
? 3L - RTR remanded PART of agency's merits decision. If breach is
basis, use of 3L also requires 4I code.
? 3P - Adverse inference
? 4Q - Compliance required
RTR DENIED
Denials require only 3K and 6Q or 6R (above) and 6D and 6N or 6P (below),
for a total of 4 codes, and 4Q if applicable
X 6D - RTR Denied
? 4N - RTR affirmed AJ
? 4O - RTR reversed AJ
? 4P - RTR modified AJ
? 4T - AJ issued Summary Judgment decision
? 4U - RTR affirmed AJ Summary Judgment
? 4V - RTR reversed AJ Summary Judgment
X 6N - Failure to meet RTR criteria
? 6P - Other procedural defect
? 3H - RTR denied attorney's fees
? 3I - RTR approved attorney's fees
? 3J - RTR modified attorney's fees
? 4Q - Compliance required on 01
OTHER CLOSURE CODES
Do NOT include 3K or 4A codes
? 3C - Duplicate docket #
? 3D - Withdrawal
? 3E - Complaint settled
? 3G - Other letter closure
? 3R - Return to agency for consolidation
? 3S - Return to AJ for consolidation
? 7N - Civil action filed
? 4Q - Compliance required on 01
Revised - 2/3/00
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.