05a10094
02-09-2001
Joseph Milder, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Joseph Milder v. Department of Veterans Affairs
05A10094
February 9, 2001
.
Joseph Milder,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A10094
Appeal No. 01995254
Agency No. 95-1671
Hearing No. 260-96-8043X
DENIAL OF REQUEST FOR RECONSIDERATION
Complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Joseph
Milder v. Department of Veterans Affairs, EEOC Appeal No. 01995254
(October 11, 2000).<1> EEOC Regulations provide that the Commission may,
in its discretion, 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 issue in the appellate decision involved whether complainant was
entitled to compensatory damages where the Commission found in a previous
decision that complainant was subjected to reprisal (prior grievance
filed raising claims of discrimination) when: (1) he was denied sick
leave in December, 1992; (2) he received a progress review in February,
1993, and (3) when he was not selected for hiring in May, 1995.
On request for reconsideration, complainant argues that the previous
decision erred when it discounted medical records and evidence presented
prior to December, 1992. According to complainant, the reprisal began
in October, 1992 rather than December, 1992. Complainant argues that
the appellate decision erred in not considering evidence of compensatory
damages in October, 1992. Lastly, complainant argues that the prior
decision failed to consider evidence of compensatory damages presented
at the hearing in this matter, but rather considered only the evidence
compiled from the investigation on compensatory damages.<2> Specifically,
complainant argues that the Commission failed to consider a letter dated
June 12, 1996, from his physician which opines that �but for stress of
the work setting that complainant underwent over a number of months and
perhaps even years, he would not have been depressed, and he would have
been able to continue working gainfully employed without disability.�
The physician also states that �the stress of the work setting began
with the conflict with his superior and a work re-assignment.�
We disagree with the complainant's argument that the reprisal began
in October, 1992. The Commission found that the first retaliatory
act occurred in December, 1992. While complainant has persistently
argued that the retaliation occurred much earlier than December, 1992,
the Commission has found that complainant has failed to prove any
discriminatory acts other than the denial of sick leave in December,
1992, the progress review in February, 1993, and the non-selection in May,
1995. The appellate decision correctly found that complainant was only
entitled to compensatory damages caused by the discriminatory conduct.
We agree with the previous decision's finding that complainant failed to
prove damages caused by the discriminatory conduct. While complainant
places much weight on his physician's letter, we find it fails to
prove compensable damages herein. Even assuming the record shows that
complainant suffered great stress from his supervisor's conduct and his
work re-assignment as the physician opines, the Commission found that
the reassignment was not discriminatory and there is no indication from
the letter that complainant suffered depression as a direct result of
the agency's discriminatory conduct.
Accordingly, after a review of the complainant's request for
reconsideration, 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. 01995254 remains
the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
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
February 9, 2001
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2After the Commission reversed the FAD in finding discrimination, it
ordered a supplemental investigation on compensatory damages.