0120102577
09-16-2010
Gregory J. Jones, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Gregory J. Jones,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102577
Agency No. 200J06952008104835
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated December 8, 2009, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
In a complaint dated November 4, 2008, Complainant alleged that the Agency subjected him to discrimination on the bases of race (Black) and disability when he was demoted from a Licensed Practical Nurse position to a Health Aide position. The complaint was given Agency No. 200J-0695-2008104835. On April 8, 2009, Complainant signed a withdrawal form, withdrawing his complaint. In May 2009, Complainant sought to have his complaint reinstated. The second complaint was given the Agency No. 200J-0695-2009102891. Thereafter the Agency issued a decision on June 23, 2009, dismissing the complaint for stating the same claim as an earlier complaint. The Agency provided proof that the decision was received by Complainant. Complainant did not appeal to the Commission. Nonetheless, on August 6, 2009, Complainant sought to again have the complaint reinstated, stating that he withdrew his complaint under duress. The Agency dismissed the complaint, denying Complainant's request to reinstate his complaint, noting that Complainant failed to support this claim of duress. The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission finds that the Agency properly refused to reinstate Complainant's complaint. The record contains Complainant's withdrawal. Complainant has failed to submit sufficient evidence to show he was under duress. To the extent he argues he was incapacitated because of drugs, Complainant has failed to provide adequate proof of the incapacitation. See Davis v. United States Postal Service, EEOC Request No. 05980475 (August 6, 1998); Crear v. United States Postal Service, EEOC Request No. 05920700 (October 29, 1992). We note that he has stated he was able to work during the relevant time frame.
Accordingly, the Agency's final decision refusing to reinstate Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
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
September 16, 2010
__________________
Date
2
0120102577
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120102577