Aaron L. Herbert, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 19, 2006
05A60991 (E.E.O.C. Sep. 19, 2006)

05A60991

09-19-2006

Aaron L. Herbert, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Aaron L. Herbert,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Request No. 05A60991

Appeal No. 01A52456

Agency Nos. 97-0366; 97-1055; 97-2210; 98-3107 & 2004-2115

DENIAL

Complainant timely requested reconsideration of the decision in Aaron

L. Herbert v. Department of Veterans Affairs, EEOC Appeal No. 05A60991

(July 14, 2006). 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 underlying appeal to our office involved an alleged breach of

settlement. Complainant argued that the agency had violated the terms of

the July 15, 1999 and February 9, 2004 settlement agreements1 when it (1)

assigned him the clerical duty of taking minutes at agency meetings; (2)

stopped providing him information to aggregate data; and (3) required him

to perform payroll and billing duties. In our decision on the matter,

we affirmed the agency's final decision concluding that the agency

substantially complied with the settlement agreements. Specifically,

we determined that the plain language of the July 15, 1999 agreement

permits the agency to assign to complainant clerical tasks such as the

one he disputes. We also found that the settlement agreements did not

require the agency to provide complainant with the information he claims.

Lastly, we found that although the agency did not initially comply with

clause (2) of the July 15, 1999 agreement, the agency removed the disputed

duties from his Performance Standards, thus resolving the matter.

In his request for reconsideration, complainant maintains that the agency

remains in breach of the agreements. Specifically, he argues that the

taking meeting minutes is not the kind of clerical task envisioned by

the drafters and signatories of the agreements. He points out that we

incorrectly stated that Compensated Work Therapy employees, who perform

such tasks, are part of the Social Work Service group. The agreement,

he indicates, specifically states that he may perform clerical duties

of the sort Social Work Service employees perform. Additionally, he

argues that the agency retaliated against him for his protected activity

by withholding information necessary to aggregate data, and that that

is a breach of the agreement. Lastly, he maintains that although the

payroll and billing duties were taken off of his performance standards,

his supervisor still expects him to perform such duties.

As mentioned above, we only grant requests for reconsideration in two

very narrow circumstances. Our regulations and Management Directive

are very clear: a "request for reconsideration is not a second appeal to

the Commission." Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614, at 9-17 (rev. Nov. 9, 1999). We note that the only

relevant argument that complainant raises before us now is, as he argues,

that we misinterpreted material facts of his claim because we stated

that the taking minutes is an acceptable clerical task as Compensated

Work Therapy employees are a subgroup of the Social Work Service group.

We do not dispute that such a distinction between the two employee groups

exists; however, we find the distinction to be immaterial. The taking

of meeting minutes is a function that falls under the OPM's definition

of what constitutes "clerical" tasks. See OPM, Clerical and Technical

Accounting and Budget Work at 3 (Dec. 1997). It involves the preparing

of documents, and compiling information from data sources. See id.

Regardless of who performs the task, the taking a minutes is a clerical

task.

As such, we deny the request for reconsideration as it fails to meet

the criteria of 29 C.F.R. � 1614.405(b). Based on the evidence before

us, our interpretation of the material facts and law of this case are

not clearly in error, and we do not find that our previous decision

overlooked any material evidence. It is clear to us that complainant

intended to file a second appeal, but that is not the purpose of our

reconsideration authority. Therefore, the decision in EEOC Appeal

No. 01A52456 remains the Commission's final decision. There is no further

right of administrative appeal on the decision of the Commission on this

request.2

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

September 19, 2006

__________________

Date

1 The February 2004 agreement states, in pertinent part, that the

agency shall "continue to honor the terms and conditions specified in

the Complainant's prior EEO Settlement Agreement dated July 15, 1999."

In his request for reconsideration, complainant attempts to draw a

distinction between the terms of the agreement, but based on the plain

language of the February 2004 agreement, we find no such distinction.

2 To the extent complainant raises a retaliation claim, the issue

should be raised to an EEO Counselor within forty-five days of the

alleged incident and should be processed as a new and separate claim,

and not as a breach allegation. See Bindal v. Dep't of Veterans Affairs,

EEOC Request No. 05900225 (Aug. 9, 1990).

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05A60991

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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05A60991