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