0520090688
12-10-2009
Isaac P. Decatur, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Isaac P. Decatur,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520090688
Appeal No. 0120083021
Hearing No. 430-2007-00346X
Agency No. 2004-0558-2007100543
DENIAL
Complainant timely requested reconsideration of the decision in Isaac
P. Decatur v. Department of Veterans Affairs, EEOC Appeal No. 0120083021
(September 9, 2009). 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 underlying case, complainant alleged he was discriminated
against on the basis of reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq., when: (1) on July 7, 2006, he was threatened by his
supervisor, the Chief of Housekeeping (CH); (2) from October 26-31,
2006, he performed double duty (supervisor and employee assignments)
and supervisor/employee confidentiality was breached; (3) on October 27,
2006, he was not given the option of using different types of leave when
he is absent from work like his fellow co-workers; (4) on November 8,
2006, CH conducted an inspection and complainant was given seven days to
correct a list of discrepancies; (5) on November 13, 2006, he was given
a letter of counseling regarding his leave usage; (6) in November 2006,
his requests for sick leave were denied and he was charged with AWOL; (7)
on November 18, 2006, he was performing double duty (supervisory duties
and a special project); (8) on December 9, 2006, he discovered that his
request for 80 hours of sick leave was disapproved; and (9) on December
28, 2006, he received a certified letter from the Chief Human Resources
Management Services (HR), requesting medical documentation from his
private physician and not a clinical psychologist by January 5, 2007.
The Commission affirmed the final order of the agency, adopting the
EEOC Administrative Judge's decision issued after a hearing, finding
that complainant failed to prove that he was subject to discrimination
as alleged. Specifically, the AJ found that complainant could not
establish a prima facie case of discrimination as there was no nexus
between his prior EEO activity and the challenged actions herein.
The AJ nevertheless assumed, arguendo, the complainant could establish
a prima facie case and found that the agency articulated legitimate,
non-discriminatory reasons for its actions, which complainant had not
shown to be pretextual. Further, the AJ found that complainant was
unable to proffer evidence to support a harassment claim.
In his request for reconsideration, complainant reiterates his arguments
from his appeal, contending that the Commission's decision permits
multiple violations of the policies, practices, and operations of the
agency. Complainant is reminded 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 (EEO MD-110), 9-17
(November 9, 1999). Because complainant has not put forth any arguments
or contentions that were not previously considered in rendering the
underlying decision, the Commission finds that complainant did not
demonstrate that the underlying decision involved a clearly erroneous
interpretation of material fact or law.
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. 0120083021 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 (P0408)
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 (Z1008)
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 10, 2009
Date
2
0520090688
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0520090688