0520130225
05-30-2013
Daniel S. Saltzman, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Daniel S. Saltzman,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520130225
Appeal No. 0120120855
Hearing No. 490-2009-00207X
Agency No. 200L-0626-2009101208
DENIAL
Complainant timely requested reconsideration of the decision in Daniel S. Saltzman v. Department of Veterans Affairs, EEOC Appeal No. 0120120855 (December 5, 2012). 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).
BACKGROUND
In the appellate decision Complainant alleged that he was discriminated against on the basis of disability when he was denied light duty for the period October 18, 2008 through November 24, 2008, when he was sent home from work and placed in a non-pay status. On November 8, 2011, an EEOC Administrative Judge (AJ) issued an order of dismissal for untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency fully implemented the AJ's decision. Complainant thereafter appealed the decision to the Commission. The Commission found that Complainant should have reasonably suspected discrimination by November 7, 2008, at the latest. Complainant did not initiate contact with an EEO Counselor until January 7, 2009, which was well beyond the 45-day limitation period. The Commission found that Complainant presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Accordingly, the Commission affirmed the Agency's final order.
RECONSIDERATION REQUEST
In his request for reconsideration, Complainant contends that he was unaware of the 45-day time limit. He maintains that there were no EEO posters on the bulletin boards in the common area so he had to ask various individuals the identity of the EEO Counselor. He contends that it took him three weeks to get this information. Complainant indicates that the Agency's actions have caused him financial hardship and he believes that the Agency has made things difficult for him upon his return including ordering a fitness for duty test, because he filed an EEO complaint. Complainant maintains that he has been very involved in saving his position even though he has been advised by the union to take disability retirement.
ANALYSIS AND FINDINGS
After reviewing 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. Complainant has failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law; or that the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Like the previous decision, we find that Complainant has failed to present an argument or evidence that warrant extending the time limit for contacting an EEO counselor. Based on his contentions in his request for reconsideration, it took him three weeks before he discovered the identity of the EEO Counselor. Had he contacted the Counselor at that time, he would have been timely but he waited until January 7, 2009. Complainant has presented no evidence which explains his delay in contacting the EEO Counselor. Accordingly, his complaint was properly dismissed for untimely EEO Counselor contact. Accordingly, the decision in EEOC Appeal No. 0120120855 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.1
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
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 (Z0610)
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
____5/30/13______________
Date
1 Additionally, Complainant maintains that he has experienced retaliation following his return to the Agency. He is advised to contact an EEO Counselor immediately concerning these matters.
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0520130225
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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