0120123217
12-20-2012
David L. Smith, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
David L. Smith,
Complainant,
v.
Tom Kilgore,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120123217
Hearing No. 420-2012-00193X
Agency No. TVA-2012-019
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated August 16, 2012, implementing the EEOC Administrative Judge's dismissal of Complainant's complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.1
BACKGROUND
Complainant, a former Agency employee, filed a formal EEO complaint on January 18, 2012.2 Therein, Complainant alleged that the Agency subjected him to discrimination on the basis of disability when:
the Director of Retirement Management, TVA Retirement System Board did not review Complainant's file to determine the presence and contents of a Form 1444 and report his findings to him as he told him he would; and the Director then refused to submit his disability retirement application for reconsideration and re-vote at the August 2011 Retirement Plan Board, and still refuses to do so.
After the investigation of the instant formal complaint, Complainant was provided with a copy of the report of investigation and with a notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing.
By order dated August 6, 2012, the AJ dismissed Complainant's complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for stating the same claims that have already been decided by the Commission. Specifically, the AJ found that Complainant's instant claim raises the same matter that was addressed by this Commission in David L. Smith v. Tennessee Valley Authority, EEOC Appeal No. 0120121443 (March 27, 2012), request for reconsideration denied, EEOC Request No. 0520120355 (June 21, 2012).
The record reflects that the Agency issued the instant final decision implementing the AJ's dismissal of Complainant's complaint.3 The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. 1614.107(a)(1) provides that the Agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission.
Following a review of the record, we determine that the instant formal complaint states the same claim that has already been decided in EEOC Appeal No. 0120121443. In the EEO complaint at issue in EEOC Appeal No. 0120121443, Complainant alleged that he was discriminated when from 2002 to July 30, 2011, and continuing, his receipt of a monthly longevity retirement distribution, instead of a compensatory disability retirement distribution, has been discriminatory; and the Director of Retirement Management neither reviewed Complainant's file to determine the presence and contents of a Form 1444 and reported his findings, nor did he submit Complainant's disability retirement application for reconsideration and re-vote at the August 2011 Retirement Plan Board.
In the instant formal complaint, Complainant alleges that the Agency subjected him to discrimination when the Director of Retirement Management, TVA Retirement System Board did not review his file to determine the presence and contents of a Form 1444 and report his findings to him as he told him he would, and the Director then refused to submit his disability retirement application for reconsideration and re-vote at the August 2011 Retirement Plan Board, and still refuses to do so.
Based on a thorough review of the record and contentions on appeal, we AFFIRM the Agency's final decision implementing the AJ's dismissal of Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
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
December 20, 2012
__________________
Date
1 We note that subsequent to the filing of the instant appeal, Complainant sent us further correspondence concerning the Agency's October 30, 2012 letter vacating its prior acceptance of another EEO complaint (Agency No. TVA-2012-161). We have docketed this matter as EEOC Appeal No. 0120130775 and will address it in a decision on that appeal.
2 The record reflects that in approximately 1992, Complainant's employment with the Agency was terminated.
3 The record reflects that in its instant final decision, the Agency inadvertently stated that it was implementing the AJ's finding of no discrimination instead of implementing the dismissal of the formal complaint for stating the same claim.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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