Phillip L. Deporter, Complainant,v.Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.

Equal Employment Opportunity CommissionJan 12, 2010
0520090620 (E.E.O.C. Jan. 12, 2010)

0520090620

01-12-2010

Phillip L. Deporter, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.


Phillip L. Deporter,

Complainant,

v.

Tom Kilgore,

President and Chief Executive Officer,

Tennessee Valley Authority,

Agency.

Request No. 0520090620

Appeal No. 0120073427

Agency No. 1211-2007010

DENIAL

Complainant timely requested reconsideration of the decision in Phillip

L. Deporter v. Tennessee Valley Authority, EEOC Appeal No. 0120073427

(June 11, 2009). 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).

In his underlying complaint, complainant alleged that he was subjected to

harassment from February 3, 2004 until the day he was forced to retire on

November 14, 2006, based on his sex (male), age (51) and in reprisal for

prior protected EO activity.1 In DePorter v. Tennessee Valley Authority,

EEOC Appeal No. 0120073427 (June 11, 2009), the Commission affirmed the

FAD finding that complainant failed to demonstrate by a preponderance

of the evidence that the agency's reasons were pretextual or motivated

by intentional discrimination.

In complainant's request for reconsideration, he contends that the

Commission decision was based on "flawed, inaccurate and incomplete

information" submitted by the agency. Complainant maintains that the

agency suppressed evidence, refused to conduct an adequate investigation

and interviewed only selected witnesses. Complainant further contends

that the agency's action also violated the Whistleblower Protection Act.

We remind complainant that a "request for reconsideration is not a second

appeal to the Commission." Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-17 (November 9,

1999). Because we find that the appellate decision does not involve a

clearly erroneous interpretation of law or fact regarding these arguments,

we deny complainant's request for reconsideration on these matters. We

note that complainant contends that agency's action also violated the

Whistleblower Protection Act. The Commission does not have jurisdiction

over Whistleblower Protection Act claims. See Reavill v. Department of

the Navy, EEOC Appeal No. 05950174 (July 19, 1996).

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. Complainant failed to present any argument or evidence that

would establish that the prior decision involved a clearly erroneous

interpretation of material fact or law. The decision in EEOC Appeal

No. 0120073427 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

January 12, 2010

__________________

Date

1 Complainant cited eight separate incidents, including constructive

discharge.

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2

0520090620

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0520090620