0520090046
01-26-2009
Tyrone D. Scott, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Tyrone D. Scott,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Request No. 0520090046
Appeal No. 0120083372
Agency No. 9Y0R08001
DENIAL
Complainant timely requested reconsideration of the decision in Tyrone
D. Scott v. Department of the Air Force, EEOC Appeal No. 0120083372
(September 26, 2008). 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).
The previous decision affirmed the agency's final decision, which
dismissed complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2),
on the ground of untimely EEO Counselor contact. In his request to
reconsider, complainant challenges the previous decision's finding that
participation in an internal agency process does not toll the time within
which an employee must contact an EEO counselor. For support, complainant
relies on Department of Defense Directive 1350.2, (Directive 1350.2) which
concerns equal opportunity for military personnel and emphasizes that
the chain of command is the primary and preferred channel for identifying
and correcting discriminatory practices. However, the record indicates
that complainant is a civilian employee,1 to whom Directive 1350.2 does
not apply. Complainant is required to adhere to the requirements and
procedures governing the agency's civilian equal employment opportunity
program, not the agency's military equal opportunity program.
After reconsidering 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. 0120083372 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 (P0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 26, 2009_________________
Date
1 For example, in his request to reconsider, complainant asks that the
agency permit him to participate in its physical fitness on duty program
for civilians.
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2
0520090046
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013