Isaac P. Decatur, Complainant,v.Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 10, 2009
0520090688 (E.E.O.C. Dec. 10, 2009)

0520090688

12-10-2009

Isaac P. Decatur, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.


Isaac P. Decatur,

Complainant,

v.

Eric K. Shinseki,

Secretary,

Department of Veterans Affairs,

Agency.

Request No. 0520090688

Appeal No. 0120083021

Hearing No. 430-2007-00346X

Agency No. 2004-0558-2007100543

DENIAL

Complainant timely requested reconsideration of the decision in Isaac

P. Decatur v. Department of Veterans Affairs, EEOC Appeal No. 0120083021

(September 9, 2009). 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 the underlying case, complainant alleged he was discriminated

against on the basis of reprisal for prior protected EEO activity under

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �

2000e et seq., when: (1) on July 7, 2006, he was threatened by his

supervisor, the Chief of Housekeeping (CH); (2) from October 26-31,

2006, he performed double duty (supervisor and employee assignments)

and supervisor/employee confidentiality was breached; (3) on October 27,

2006, he was not given the option of using different types of leave when

he is absent from work like his fellow co-workers; (4) on November 8,

2006, CH conducted an inspection and complainant was given seven days to

correct a list of discrepancies; (5) on November 13, 2006, he was given

a letter of counseling regarding his leave usage; (6) in November 2006,

his requests for sick leave were denied and he was charged with AWOL; (7)

on November 18, 2006, he was performing double duty (supervisory duties

and a special project); (8) on December 9, 2006, he discovered that his

request for 80 hours of sick leave was disapproved; and (9) on December

28, 2006, he received a certified letter from the Chief Human Resources

Management Services (HR), requesting medical documentation from his

private physician and not a clinical psychologist by January 5, 2007.

The Commission affirmed the final order of the agency, adopting the

EEOC Administrative Judge's decision issued after a hearing, finding

that complainant failed to prove that he was subject to discrimination

as alleged. Specifically, the AJ found that complainant could not

establish a prima facie case of discrimination as there was no nexus

between his prior EEO activity and the challenged actions herein.

The AJ nevertheless assumed, arguendo, the complainant could establish

a prima facie case and found that the agency articulated legitimate,

non-discriminatory reasons for its actions, which complainant had not

shown to be pretextual. Further, the AJ found that complainant was

unable to proffer evidence to support a harassment claim.

In his request for reconsideration, complainant reiterates his arguments

from his appeal, contending that the Commission's decision permits

multiple violations of the policies, practices, and operations of the

agency. Complainant is reminded 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 (EEO MD-110), 9-17

(November 9, 1999). Because complainant has not put forth any arguments

or contentions that were not previously considered in rendering the

underlying decision, the Commission finds that complainant did not

demonstrate that the underlying decision involved a clearly erroneous

interpretation of material fact or law.

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. 0120083021 remains the

Commission's 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 (P0408)

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 (Z1008)

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 10, 2009

Date

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0520090688

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0520090688