Benny M. Prudente, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 6, 2000
05980965 (E.E.O.C. Dec. 6, 2000)

05980965

12-06-2000

Benny M. Prudente, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Benny M. Prudente v. Department of Veterans Affairs

05980965

December 6, 2000

.

Benny M. Prudente,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Request No. 05980965

Appeal No. 01966199

Agency No. 93-0304

DENIAL OF REQUEST FOR RECONSIDERATION

The complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Benny

M. Prudente v. Department of Veterans Affairs, EEOC Appeal No. 01966199

(June 19, 1998).<1> EEOC Regulations provide that the Commission may,

in its discretion, 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, employed by the agency as a Supply Clerk (GS-3) at the

time of the alleged discriminatory event, filed a formal complaint on

November 29, 1993, in which he alleged discrimination based on sex (male),

disability (muscle atrophy in left leg, drop foot, weak ankle and knee),

and age (68) when, in October 1993, he was not selected for the position

of Program Clerk (GS-5) in either Nursing Service or Medical Service,

both advertised in Vacancy Announcement No. 93-26.

The agency accepted the complaint and conducted an investigation. At the

conclusion of the investigation, when complainant failed to file a timely

request for a hearing before an EEOC

administrative judge, the agency issued a final decision finding no

discrimination. Our previous decision, after considering complainant's

arguments and reviewing the record, found that the agency had not engaged

in discrimination as alleged.

Assuming that complainant established a prima facie case of discrimination

based on sex, disability,<2> and age, 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. 01966199 remains the Commission's final decision.

There is no further right of administrative appeal on the decision of

the Commission on this 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

December 6, 2000

__________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2Although the previous decision found that complainant was not a person

with a disability, the counselor's report indicates complainant has a

�known� disability. Nonetheless, there is no information in the file

indicating how complainant is substantially limited.