05a10376
07-31-2002
Hea S. Min, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Hea S. Min v. Department of Veterans Affairs
05A10376
July 31, 2002
.
Hea S. Min,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A10376
Appeal No. 01995966
Agency No. 97168
Hearing No. 380-98-8089x
DENIAL OF REQUEST FOR RECONSIDERATION
Hea S. Min (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider the
decision in Hea S. Min v. Department of Veterans Affairs, EEOC Appeal
No. 01995966 (January 8, 2001). EEOC Regulations provide that the
Commission may, in its discretion, 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).
After a review of complainant's request for reconsideration, 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). Complainant
alleged that she was discriminated against on the bases of race (Korean),
national origin (Republic of Korea), color (non-white)<1> and disability
(shoulder and knee tendinitis and bursitis) when she was terminated during
her temporary status on January 27, 1997. Following a hearing, an EEOC
Administrative Judge (AJ) determined that there was direct evidence that
complainant's termination was motivated by national origin discrimination,
but also found that the agency showed by clear and convincing evidence
that the termination would have been made even absent the bias against
complainant's language and accent. The AJ further found that complainant
failed to prove discrimination on the bases of race, color or disability.
The agency adopted the AJ's finding of no discrimination in regard
to race, color and disability, and concluded that it had subjected
complainant to discrimination on the basis of her national origin.
The agency agreed with the AJ that it provided clear and convincing
evidence that it would have terminated complainant even absent
discriminatory animus and therefore awarded complainant declaratory
relief. The appellate decision affirmed the FAD. In so doing, the
previous decision noted that because complainant established that her
termination was partially motivated by discrimination and the agency,
in turn, established that it would have taken the same action even
absent discrimination, complainant was only entitled to limited relief.
See Walker v. Social Security Administration, EEOC Request No. 05980504
(April 8, 1999).
In her request for reconsideration, complainant alleges that one of the
named responsible management officials (RMO) has resigned due to her
�unfair policies and practices towards others.� Complainant contends
that the staff nurses who were interviewed during the investigation
testified as they did out of fear of retaliation at the hands of RMO and
would now �express a different view about what happened....� Complainant
offers no evidence to demonstrate that the previous decision involved a
clearly erroneous interpretation of material fact or law or will have
a substantial impact on the policies, practices, or operations of the
agency. Although she claims that witnesses would now provide different
testimony, she provides no details as to what this testimony would be
or how it would establish that the previous decision was erroneous,
nor does she provide any statements from the witnesses in question.
Accordingly, after a careful review of the record, we find that
complainant's request does not meet the criteria of 29 C.F.R. �
1614.405(b). The decision in EEOC Appeal No. 01995966 remains
the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
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
July 31, 2002
Date
1 Complainant does not appear to have specified
her color, although she claimed it as a basis for discrimination on the
formal complaint. The AJ refers to her color as �non-white.�