05a60111
11-17-2005
Arthur Giles, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Arthur Giles v. Department of Veterans Affairs
05A60111
11-17-05
.
Arthur Giles,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A60111
Appeal No. 01A42105
Agency No. 200L-0596
Hearing No. 240-A2-5117x
DENIAL
Arthur Giles (complainant) timely requested reconsideration of the
decision in Arthur Giles v. Department of Veterans Affairs, EEOC Appeal
No. 01A42105 (September 12, 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 his underlying complaint, complainant alleged that the agency
violated Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq., when he was terminated from his
position of Nursing Assistant, GS-4, during his probationary period.
Complainant filed a formal complaint and requested a hearing before
an EEOC Administrative Judge. At the conclusion of a hearing, the
AJ determined that complainant failed to establish that he had been
discriminated against as alleged. The agency adopted the AJ's finding of
no discrimination. Complainant timely filed an appeal with the EEOC.
In Giles v. Dep't of Veterans Affairs, EEOC Appeal No. 01A42105,
(September 12, 2005), the Commission affirmed the agency's adoption of
the AJ's decision.
In his request for reconsideration, complainant states that there were
two errors of material fact; (1) that he was a competent employee; and (2)
he should not have been terminated according to the collective bargaining
agreement. We note that complainant did not make these arguments on
appeal. 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, at 9-17 (rev. November 9,
1999). Additionally, we find that complainant has failed to establish
that these alleged misinterpretations were material to the decision.
As we noted in our previous decision, the AJ's determination that
complainant was not performing all of his required duties is supported
by substantial evidence in the record. Further, even if complainant was
not terminated in accordance with the collective bargaining agreement,
it is unclear how this demonstrates that complainant was discriminated
against as he alleged.
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. 01A42105 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
____11-17-05______________
Date