Thomas D. Wasser, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionAug 5, 2005
05a51042 (E.E.O.C. Aug. 5, 2005)

05a51042

08-05-2005

Thomas D. Wasser, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Thomas D. Wasser v. Department of Veterans Affairs

05A51042

08-05-05

.

Thomas D. Wasser,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Request No. 05A51042

Appeal No. 01A41455

Agency No. 2001-0516-2002101194

Hearing No. 150-2002-08503X

DENIAL

Thomas D. Wasser (complainant) timely requested reconsideration of

the decision in Thomas D. Wasser v. Department of Veterans Affairs,

EEOC Appeal No. 01A41455 (June 22, 2005). 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 the appellate decision, complainant alleged that the agency

discriminated against him on the basis of disability (partially ruptured

vocal chords/hoarseness) when he was terminated from employment, effective

January 7, 2002. Following a hearing before an Administrative Judge

(AJ), the AJ issued a decision finding no discrimination. The agency

fully implemented the AJ's decision. After a review of the record in

its entirety, the Commission affirmed the agency's final order.

In his request for reconsideration, complainant maintains that his

primary witness, was not allowed to testify because he was 15 minutes

late to the hearing, but that many accommodations were made for the

agency's witnesses and its attorneys. Complainant maintains that by

not allowing his witness to testify he could not establish factually

the quality or quantity of his disability, and how it affected the work

place environment and caused his employment termination. Complainant

also contends that he was serving at an Air Base in Saudi Arabia prior

to September 11, 2001, and upon returning to the agency, within a very

few days he was terminated. He maintains that the close proximity of

his military service and being terminated can not be ignored. Finally,

complainant contends that he is not interested in pursuing a civil suit

and his intention is merely to set the record straight.

The Commission finds that while it is unfortunate that his witness did

not arrive in a timely manner, complainant through the use of medical

documentation and his own testimony, could have established the quality

or quantity of his disability. Additionally, other than complainant's

own assertions, there is no evidence that complainant was terminated

because of his military service. Finally, although complainant may have

wanted to set the record straight, he did not show that the appellate

decision involved a clearly erroneous interpretation of material fact or

law or that the decision will have a substantial impact on the policies,

practices, or operations of the agency.

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. The decision in EEOC Appeal No. 01A41455 remains the

Commission's final 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 (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

____08-05-05______________

Date