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.