Estate of Andre P. Rudder, Complainant,v.Tom J. Vilsack, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency.

Equal Employment Opportunity CommissionDec 6, 2012
0520120281 (E.E.O.C. Dec. 6, 2012)

0520120281

12-06-2012

Estate of Andre P. Rudder, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency.


Estate of Andre P. Rudder,

Complainant,

v.

Tom J. Vilsack,

Secretary,

Department of Agriculture

(Natural Resources Conservation Service),

Agency.

Request No. 0520120281

Appeal No. 0120100456

Agency No. NRCS-2008-00996

DENIAL

Complainant timely requested reconsideration of the decision in Andre P. Rudder (Estate Of) v. Department of Agriculture, EEOC Appeal No. 0120100456 (January 18, 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).

The previous decision affirmed the Agency's finding that Complainant had not been discriminated against on the bases of his race, color, national origin or in reprisal for prior EEO activity when he was reassigned from Beltsville, Maryland to Fort Collins, Colorado. It found that Complainant had not shown the Agency's legitimate, nondiscriminatory reasons to be pretext for discrimination on any of his claimed bases.

Complainant's estate filed a request for reconsideration in which it argued that the previous decision erred when it concluded that the fact that all members of the Information Technology team of which Complainant was a member were also transferred to Colorado does not necessarily show that there was no discriminatory animus on the part of the responsible management officials. Complainant's estate argued that the Agency did not follow through on promises made to the team members to mitigate the impact of the involuntary transfers. It also noted that other team members who had filed grievances or EEO complaints against the Agency regarding the transfer have subsequently settled with the Agency. The Agency filed a statement in opposition to the Complainant's request for reconsideration in which it urged the Commission to affirm its previous decision.

We find that Complainant's request for reconsideration fails to show that our previous decision involved a clearly erroneous interpretation of material fact or law, or that it would have a substantial impact on the policies, practices or operations of the Agency. Complainant has not shown that the previous decision was erroneous in its conclusion that he had not established that the Agency's legitimate, nondiscriminatory reasons for its actions were pretext for discrimination based on his race, color, national origin or in reprisal for EEO activity. Complainant has not provided evidence that reprisal based on previous EEO activity motivated the alleged responsible management officials to decide to restructure the Information Technology Division of which he was a member, and to transfer the entire team to Colorado.

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. The decision in EEOC Appeal No. 0120100456 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 (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

December 6, 2012

Date

2

0520120281

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0520120281