Gene Dollander, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veteran's Affairs Agency.

Equal Employment Opportunity CommissionSep 28, 2000
05a00848 (E.E.O.C. Sep. 28, 2000)

05a00848

09-28-2000

Gene Dollander, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veteran's Affairs Agency.


Gene Dollander v. Department of Veteran's Affairs

05A00848

September 28, 2000

.

Gene Dollander,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veteran's Affairs

Agency.

Request No. 05A00848

Appeal No. 01993212

Agency No. 98-0877

Hearing No. 110-98-8328X

DENIAL OF REQUEST FOR RECONSIDERATION

The complainant initiated a request to the Equal Employment Opportunity

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

Dollander v. Department of Veteran's Affairs, EEOC Appeal No. 01993212

(May 18, 2000).<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).

On February 10, 1998, complainant filed a formal complaint alleging he

was discriminated against on the basis of gender (male), when he was not

selected for the Nurse Manager position. Following an investigation

into the complaint, complainant requested a hearing before an EEOC

Administrative Judge (AJ). After a hearing, the AJ issued a Recommended

Decision (RD) finding that complainant was not discriminated against.

Although the AJ found complainant established a prima facie case of gender

discrimination, he also found that complainant failed to establish that

the agency's reasons for not selecting him for the position were a pretext

for discrimination. In that regard, the AJ noted that the preponderance

of the evidence revealed complainant was not selected for the position

because the selectee's background and interview were superior to that

of complainant. For instance, complainant lacked a master's degree as

well as the managerial experience held by the selectee. Furthermore,

the AJ noted complainant failed to provide sufficient persuasive evidence

that the responsible officials held a discriminatory motive against

complainant based upon his gender. Although the AJ noted that the

selectee's application was accepted after the deadline, that oversight,

in and of itself, did not prove discrimination on the basis of sex.

The agency's final decision affirmed the AJ's RD.

In our prior decision, we found that the AJ's decision properly

found complainant was not discriminated against. In his request for

reconsideration, complainant argues that the agency failed to comply

with federal personnel regulations.

After a review of the complainant's request for reconsideration, 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. Complainant failed

to show that the prior decision involved an erroneous interpretation of

material law or fact. Complainant's argument that the agency failed to

comply with federal personnel regulations was considered by the AJ at

the hearing. After a review of the information submitted by complainant

in his request for reconsideration, we find insufficient evidence

that complainant was discriminated against as alleged. The decision

in EEOC Appeal No. 01993212 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.

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)

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 ORDEPARTMENT

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

September 28, 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.