James W. Brand,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Request No. 0520090215
Appeal No. 0120083517
Agency No. 200620345FAA05
DENIAL
Complainant timely requested reconsideration of the decision in James
W. Brand v. Department of Transportation, EEOC Appeal No. 0120083517
(December 19, 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).
Complainant alleged that the agency discriminated against him on the bases
of age and reprisal when it did not award him a discretionary Superior
Contribution Increase (SCI) and denied him an upgrade to a higher level
pay-band based on an accretion of duties. The previous decision affirmed
the final agency order adopting the decision of the EEOC Administrative
Judge, who granted the agency's motion for summary judgment and issued
a decision in its favor.
In his request for reconsideration, complainant restates the arguments
presented on appeal and continues to challenge the agency's interpretation
of its policies that preclude promotions by accretion of duties and
that grants awards based on a numerical system. The undisputed record
supports the entry of judgment for the agency, because the record
shows that complainant's rating was below the cut-off for a SCI award
and that the agency had discontinued the practice of upgrades based on
accretion of duties. Complainant also argues that he did not have his
allotted time to respond to the agency's motion. The record, however,
shows that the Administrative Judge referenced complainant's response
before entering judgment.
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. 0120083517 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 (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
April 1, 2009
Date
2
0520090215
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520090215
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