05a21161
01-27-2003
Mark Zimmerman v. Department of Veterans Affairs 05A21161 01-27-03 .Mark Zimmerman, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Mark Zimmerman v. Department of Veterans Affairs
05A21161
01-27-03
.Mark Zimmerman,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A21161
Appeal No. 01A04000
DENIAL OF REQUEST FOR RECONSIDERATION
On August 25, 2002, Mark Zimmerman (hereinafter referred to as
complainant) initiated a timely request to the Equal Employment
Opportunity Commission (Commission) to reconsider the decision in Mark
Zimmerman v. Anthony J. Principi, Secretary, Department of Veterans
Affairs, EEOC Appeal No. 01A04000 (July 26, 2002). EEOC Regulations
provide that the Commission may, in its discretion, reconsider any
previous decision where the party demonstrates that: (1) the previous
decision involved a clearly erroneous interpretation of material fact or
law; or (2) the decision will have a substantial impact on the policies,
practices, or operation of the agency. 29 C.F.R. � 1614.405(b).
ISSUE PRESENTED
The issue herein is whether the previous decision properly affirmed the
final agency decision finding that complainant had not been subjected
to sex (male), and reprisal discrimination.
BACKGROUND
A review of the record reveals that complainant filed three formal EEO
complaints, raising various allegations of sex (male), and reprisal
discrimination and harassment. Complainant indicated, inter alia, that
he was counseled verbally and in writing, received improper performance
ratings, and received a proposed reprimand, and that his supervisor
solicited negative input from his co-workers. After complainant withdrew
his request for a hearing, the agency issued a decision dated April 27,
2000, finding that complainant was not subjected to discrimination as
alleged. On appeal, the previous decision affirmed the final agency
decision, stating that a preponderance of the record evidence did not
establish that discrimination occurred.
In his request for reconsideration, complainant questioned which evidence
was considered on appeal. The agency countered that complainant's
request did not meet the criteria for reconsideration.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument which tends to establish that at least one of the
criteria of 29 C.F.R. � 1614.405(b) is met. In order for a case to be
reconsidered, the request must contain specific information which meets
the requirements of this regulation. For the reasons set forth below,
the Commission denies complainant's request for reconsideration.
A careful review of the record reveals that the agency correctly
determined that complainant was not subjected to discrimination with
regard to the matters alleged. The agency documented a number of
confrontational incidents between complainant, his co-workers, and
at least one patient's family which led to the counseling and lower
proficiency reports. Further, complainant acknowledged having difficult
relationships in the past, losing his temper, and being impatient and
abrupt. While the record shows that complainant and his supervisor
did not get along, the evidence does not show that the supervisor's
actions were based upon discriminatory animus. Accordingly, we find
that the previous decision properly affirmed the April 27, 2000 final
agency decision.
CONCLUSION
After a review of complainant's request for reconsideration,
the previous decision, and the entire record, the Commission finds
that complainant's request does not meet the criteria in 29 C.F.R. �
1614.405(b). Therefore, it is the decision of the Commission to deny
complainant's request. The decision in EEOC Appeal No. 01A04000 (July
26, 2002) remains the Commission's final decision. There is no further
right of administrative appeal on a decision of the Commission on this
Request for Reconsideration.
STATEMENT OF RIGHTS ON 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
_____01-27-03_____________________________
Date