0520100410
08-25-2010
Rodney Chavez, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs Agency.
Rodney Chavez,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs
Agency.
Request No. 0520100410
Appeal No. 0120083987
Hearing No. 551-2007-00157X
Agency No. 200P-0648-2007100940
DENIAL
Complainant timely requested reconsideration of the decision in Rodney Chavez v. Department of Veterans Affairs, EEOC Appeal No. 0120083987 (May 6, 2010). 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).
Complainant alleged that he was discriminated against on the bases of age (55) and reprisal for prior protected EEO activity when, on or about December 8, 2006, management denied his request to work 100 percent official time as First Vice President of the AFGE Local 2157. An EEOC Administrative Judge (AJ) issued a decision without a hearing finding no discrimination. The Commission agreed that there were no material facts at issue, so a decision without a hearing was appropriate, and affirmed the finding of no discrimination.1 Further, the Commission found that the Agency had articulated a legitimate, nondiscriminatory reason for its action: Complainant, an ultrasound technician, held a mission-critical position, and due to his department's staff shortages his request to work 100 percent union duties had to be denied. As a compromise, Complainant was offered 50 percent leave to serve his Union duties until additional staff could be hired. The Agency also allowed Complainant to serve union time on a day-to-day basis starting on December 11, 2006. The Commission found that Complainant failed to show that the Agency's articulated reason was pretext for discrimination.
Complainant did not submit a brief with his request for reconsideration. However, the Agency submitted a brief asking that Complainant's request for reconsideration be denied because he failed to meet the criteria for reconsideration and because he failed to show that the agency's legitimate, nondiscriminatory reasons were pretext for discrimination.
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 Commission finds that Complainant failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law or that the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Therefore, the decision in EEOC Appeal No. 0120083987 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
August 25, 2010
Date
1 On appeal Complainant requested that the instant complaint be consolidated with his previous EEO complaints. The Commission denied his request, indicating that the complaints referenced by Complainant were not presently before the Commission. In addition, the Commission noted that Complainant could not revive claims that had been previously resolved or otherwise adjudicated.
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0520100410
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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