Arthur Giles, Complainant,v.R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 17, 2005
05a60111 (E.E.O.C. Nov. 17, 2005)

05a60111

11-17-2005

Arthur Giles, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.


Arthur Giles v. Department of Veterans Affairs

05A60111

11-17-05

.

Arthur Giles,

Complainant,

v.

R. James Nicholson,

Secretary,

Department of Veterans Affairs,

Agency.

Request No. 05A60111

Appeal No. 01A42105

Agency No. 200L-0596

Hearing No. 240-A2-5117x

DENIAL

Arthur Giles (complainant) timely requested reconsideration of the

decision in Arthur Giles v. Department of Veterans Affairs, EEOC Appeal

No. 01A42105 (September 12, 2005). 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 his underlying complaint, complainant alleged that the agency

violated Title VII of the Civil Rights Act of 1964 (Title VII), as

amended, 42 U.S.C. � 2000e et seq., when he was terminated from his

position of Nursing Assistant, GS-4, during his probationary period.

Complainant filed a formal complaint and requested a hearing before

an EEOC Administrative Judge. At the conclusion of a hearing, the

AJ determined that complainant failed to establish that he had been

discriminated against as alleged. The agency adopted the AJ's finding of

no discrimination. Complainant timely filed an appeal with the EEOC.

In Giles v. Dep't of Veterans Affairs, EEOC Appeal No. 01A42105,

(September 12, 2005), the Commission affirmed the agency's adoption of

the AJ's decision.

In his request for reconsideration, complainant states that there were

two errors of material fact; (1) that he was a competent employee; and (2)

he should not have been terminated according to the collective bargaining

agreement. We note that complainant did not make these arguments on

appeal. 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, at 9-17 (rev. November 9,

1999). Additionally, we find that complainant has failed to establish

that these alleged misinterpretations were material to the decision.

As we noted in our previous decision, the AJ's determination that

complainant was not performing all of his required duties is supported

by substantial evidence in the record. Further, even if complainant was

not terminated in accordance with the collective bargaining agreement,

it is unclear how this demonstrates that complainant was discriminated

against as he alleged.

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. 01A42105 remains the

Commission's final 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 (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

____11-17-05______________

Date