0520120580
01-31-2013
Richard Mandlebaum, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Richard Mandlebaum,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520120580
Appeal No. 0120112321
Agency No. 200H-06202010100442
DENIAL
Complainant timely requested reconsideration of the decision in Richard Mandlebaum v. Department of Veterans Affairs, EEOC Appeal No. 0120112321 (July 20, 2012). 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 Agency's dismissal of claims 1 through 3, finding that Complainant failed to contact an EEO Counselor within the 45-day regulatory limit. We also found that Complainant failed to establish a prima facie case of discrimination with respect to claim 5. We noted that Complainant failed to indentify a non-Jewish part-time physician who was treated differently than he was. With respect to claim 4, we found that the Agency articulated legitimate, nondiscriminatory reasons for its actions; namely, that Complainant reportedly sent inappropriate e-mails. With regard to claims 6 and 7, we also found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. We noted that Complainant's appointment was not renewed due to budgetary reasons and a declining patient volume. We found that Complainant failed to establish that the Agency's reasons were pretext for discrimination or were motivated by discriminatory animus. We also found that Complainant failed establish that he was subjected to a hostile work environment.
In his request for reconsideration, Complainant, through his representative, contends that the Agency's final decision was issued beyond the required 60 days. Complainant contends that the Agency did not follow proper procedures when failing to convert him to career status. Complainant contends that upholding the Agency's decision would harm the integrity of Office of Personnel Management (OPM) regulations, which establish a career appointment upon the completion of a probationary period. Complainant also asks that we reconsider the evidence of record and essentially reargues what has already been addressed.
We remind Complainant 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) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. Complainant does not dispute that his EEO Counselor contact was untimely with respect to claims 1 through 3. Complainant also has not demonstrated that the previous decision clearly erred in finding that he failed to establish that the Agency's actions were motivated by discriminatory animus. We note that, even had Complainant established during the proceedings below the existence of a procedural irregularity regarding his non-conversion, such an irregularity would, at best, be sufficient to raise an inference of discrimination. Without more, it would be insufficient to establish that the Agency's proffered explanation for its actions was actually pretext to mask unlawful discrimination.
After reviewing 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. 0120112321 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
January 31, 2013
Date
2
0520120580
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120580