0520110541
10-20-2011
John K. Sokolowski, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
John K. Sokolowski,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520110541
Appeal No. 0120103448
Hearing No. 540-2009-00126X
Agency No. 200P-0678-2008104500
DENIAL
Complainant timely requested reconsideration of the decision in
John K. Sokolowski v. Department of Veterans Affairs, EEOC Appeal
No. 0120103448 (April 14, 2011). 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 our previous decision we affirmed the Administrative Judge’s
(AJ’s) decision finding that Complainant failed to demonstrate that the
Agency’s actions were the result of age discrimination. We noted that,
during the relevant time, Complainant was 40 and the selectee was 35. We
noted that the age difference between Complainant and the selectee was
insufficient to establish an inference of age discrimination. We further
noted that Complainant failed to show discrimination based on retaliation.
In his request for reconsideration, Complainant, in pertinent part, notes
that the U.S. Court of Appeals for the Eleventh Circuit has ruled that a
difference of three years is sufficient to establish a prima facie case
of age discrimination. Complainant contends that there is no “bright
line” test for what constitutes substantially younger. Complainant
also reiterates arguments previously considered below.
We note that the argument raised by Complainant in his request goes
only to whether he was able to establish a prima facie case of age
discrimination. During the proceedings below, however, the AJ also
found that the Agency had met its burden to articulate legitimate,
non-discriminatory reasons for its actions, which Complainant had not
shown to be pretextual. Complainant’s request does not show that
our previous decision was clearly in error. We note that a request for
reconsideration is not a second form of appeal. E.g., Lopez v. Dep’t of
Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007); EEO Management
Directive for Part 1614 (EEO MD-110), Chap. 9, §VII.A. (Nov. 9, 1999).
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. 0120103448 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
October 20, 2011
Date
2
0520110541
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110541