0520070870
09-26-2007
Willand C. Losinger, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Willand C. Losinger,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Request No. 0520070870
Appeal No. 0120072521
Agency No. APHIS200501289
DENIAL
Complainant timely requested reconsideration of the decision in Willand
C. Losinger v. Department of Agriculture, EEOC Appeal No. 0120072521
(August 16, 2007). 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 record reflects that complainant filed a formal complaint, alleging
that the agency discriminated against him in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Specifically, he alleged discrimination on the basis of reprisal for
prior EEO activity when, on July 5, 2005, he was not selected for the
position of Mathematical Statistician, GS-1529A-12/13 (position), at
the National Animal Health Monitoring System, Center for Animal Health
Monitoring, Animal and Plant Health Inspection Service, in Ft. Collins,
CO (NAHMS).
Following the agency's investigation, complainant was provided with
the Report of Investigation (ROI) and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ), or a final decision.
Complainant did not request a hearing, and the agency issued a final
decision on April 16, 2007.
In its decision, the agency found that complainant failed to establish a
prima facie case of reprisal discrimination. However, it assumed arguendo
that complainant had established such a case, and found that the selecting
official (SO) articulated a legitimate, nondiscriminatory reason for not
selecting complainant for the subject position. Specifically, the SO
testified that she concluded that the selectee and complainant had similar
experience and skill, but that complainant had prior conduct problems,
difficulty in getting along with others, and record of discipline.
Although the complainant maintained that he did not possess a record
of past discipline, the agency, through the use of a supplemental
investigation (SI),1 determined that the record established complainant's
disciplinary record. As such, the agency found that complainant failed
to prove that the SO's reason was pretext for discrimination.
Complainant appealed the agency's April 16, 2007 decision to the
Commission, and in EEOC Appeal No. 0120072521, the Commission affirmed the
aforesaid decision. We concluded that complainant failed to prove by a
preponderance of the evidence that the agency acted in reprisal when he
was not selected for the Mathematical Statistician position. Moreover,
we requested that the agency provide complainant with a copy of the SI.
On August 28, 2007, complainant filed this reconsideration request.
In relevant part, he asserts that the agency has not yet provided him
with a copy of the SI as requested by the Commission, and he objects to
his complaint regarding the processing of his formal complaint being
characterized as a "spin-off" complaint. Furthermore, he reiterates
arguments made previously on appeal.
In a request to reconsider, a complainant is required to show that the
appellate decision involved a clearly erroneous interpretation of material
fact or law; or 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). "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), 9-17 (November 9, 1999).
Here, complainant has not met the requirements for a grant of his request
for reconsideration. However, he states that the agency failed to provide
him with a copy of the SI.2 In footnote 3 of our prior decision, we
directed the agency to provide a copy of the investigation to complainant,
including any subsequent investigations, and any other information
upon which it based its decision.3 Since the agency has ignored the
Commission's request, we now order the agency to provide a copy of the
investigation to complainant, including any subsequent investigations,
and any other information upon which it based its decision. Moreover, if
he so chooses, complainant may file a second request for reconsideration
based upon evidence contained in the SI.
To the extent that complainant asserts that his "spin-off" complaint
should not be dismissed, we note that 29 C.F.R. � 1614.107(a)(a) states
that the agency shall dismiss a complaint that alleges dissatisfaction
with the processing of a previously filed complaint. However, the agency
official responsible for the quality of complaints processing must also
add a record of the complainant's concerns and any actions the agency
took to resolve the concerns, to the complaint file maintained on the
underlying complaint. EEO MD-110, at 5-26. If no action was taken,
the file must contain an explanation of the agency's reason(s) for not
taking any action. Id. In light of the facts presented in the instant
case, we order the agency to provide complainant with a report of any
actions it takes to resolve his concerns regarding the processing of
his complaint, or an explanation of its reason for not taking action.
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. 0120072521 remains the
Commission's final decision. However, the agency is directed to comply
with the order below.
ORDER
The agency is ordered to take the following action:
1. Within thirty (30) calendar days of the date this decision
becomes final, the agency shall provide a copy of the investigation to
complainant, including the supplemental investigation, any subsequent
investigations, and any other information upon which it based its
decision.
2. Within thirty (30) calendar days of the date this decision becomes
final, the agency official responsible for the quality of complaints
processing must add a record of the complainant's concerns, and any
actions the agency took to resolve the concerns, to the complaint file
maintained on the underlying complaint. Moreover, the agency shall
provide complainant with a report of any actions taken by the agency
to resolve the concerns, or an explanation of its reason for not taking
action.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. � 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
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
_____9/26/07_____________
Date
1 The decision referred to the SI, which was not part of the record
initially sent to the Commission. In EEOC Appeal No. 0120072521, we
requested that the agency immediately provide the SI and send a copy
to complainant.
2 The agency does not rebut complainant's assertion that it has not
provided him with the SI.
3 We further reminded the agency that, if it failed to comply with the
Commission's regulations and directives, it may be subject to sanctions.
29 C.F.R. � 1614.404(c).
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0520070870
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0520070870