0520120169
05-30-2012
James Campbell, Jr., Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
James Campbell, Jr.,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520120169
Appeal No. 0120112704
Agency No. 2004-0637-2008102712
DENIAL
Complainant timely requested reconsideration of the decision in James Campbell, Jr. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112704 (Oct. 21, 2011). 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 appellate decision, Complainant appealed the EEOC Administrative Judge's (AJ) decision issued without a hearing. The AJ issued sanctions against Complainant, in the form of dismissing his hearing request, because he did not respond to the Agency's discovery requests, Motion to Compel, or Motion to Dismiss. The AJ further found that Complainant failed to establish that he had been discriminated against and harassed in violation of Title VII, as alleged. In James Campbell, Jr. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120112704 (Oct. 21, 2011), the Commission determined that the AJ did not abuse her discretion when she issued sanctions against Complainant. Further, the Commission determined that Complainant failed to establish that he was discriminated against or harassed as alleged. Complainant requests that the Commission reconsider its decision.
In his request for reconsideration, Complainant requests reconsideration because the record did not contain all the relevant evidence. Complainant argues that he had interrogatory requests and documentation to support his complaint. Further, Complainant argues that he has statements from witnesses who were never included in the investigation.
Complainant largely reiterates arguments made previously on appeal. We remind Complainant 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). Further, as a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. MD-110 at 9-15; 29 C.F.R. � 1614.404(b). Because Complainant has not made an affirmative showing that the evidence was not reasonably available prior or during the investigation or prehearing, we decline to address any new evidence presented in Complainant's request for reconsideration. A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has done neither here. Because we find that Complainant failed to meet the criteria of 29 C.F.R. � 1614.405(b), we will deny the request.
After reviewing 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. 0120112704 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 (P0610)
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 (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
____5/30/12______________
Date
2
0520120169
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120169