05a60932
08-31-2006
James E. Polk, Complainant, v. Bill Baxter, Chairman, Tennessee Valley Authority, Agency.
James E. Polk v. Tennessee Valley Authority
05A60932
8-31-06
.
James E. Polk,
Complainant,
v.
Bill Baxter,
Chairman,
Tennessee Valley Authority,
Agency.
Request No. 05A60932
Appeal No. 01A60469
Agency No. 0422-2004031<1>
DECISION ON REQUEST TO RECONSIDER
On May 18, 2006, James E. Polk (complainant) timely requested
reconsideration of the decision in James E. Polk v. Bill Baxter, Chairman,
Tennessee Valley Authority, EEOC Appeal No. 01A60469 (April 21, 2006).
EEOC regulations provide that the Commission may, in its discretion,
grant a request to reconsider any previous Commission decision where
the party demonstrates that: (1) the appellate decision involved a
clearly erroneous interpretation of material fact or law; or (2) the
decision will have a substantial impact on the policies, practices,
or operation of the agency. 29 C.F.R. � 1614.405(b).
Our previous decision addressed complainant's complaint that he was not
selected as Lineman Foreman in January 2004, based on race (black), age
(59), and in reprisal for prior EEO activity. The decision affirmed
the agency's final decision (FAD) that it did not discriminate against
complainant and provided complainant with a complete analysis and review
of the facts and law. As the FAD explained, and the record confirmed, the
application process weighed 40% on a candidate's qualifications and 60%
on the interview. The selectee received the highest score, 26 points,
and complainant received 20 points. Also, the selecting official
(SO) noted that the same questions were asked of all candidates and
that complainant had difficulty and was hesitant in answering several
questions. We affirmed the agency's FAD that concluded that it had
articulated legitimate, nondiscriminatory reasons for its selection
and that complainant failed to demonstrate that the agency's reasons
were not true and based on discriminatory animus. Although complainant
contended that another manager (M1) referred to his prior EEO activity,
complainant did not demonstrate that M1 participated in the selection
process; also, the SO denied knowledge of complainant's prior EEO
activity, and complainant did not show otherwise.
In his request, in addressing the complaint before us only, complainant
contended that the agency was biased in favor of its managers' and
credited their statements in the record; that complainant established a
prima facie case of reprisal and showed a causal connection through M1
and another manager (M2) who participated in the review process; that the
agency had only three black foremen out of 26; and that pretext was shown
because complainant was more qualified, the statistics show a disparity,
management witnesses were not credible, and some managers were aware of
his prior EEO activity.
In order to merit the reconsideration of a prior decision, the requesting
party must submit written argument that tends to establish that at least
one of the criteria of 29 C.F.R. � 1614.405(b) is met. The Commission's
scope of review on a request for reconsideration is narrow and is not
merely a form of a second appeal. Lopez v. Department of the Air Force,
EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS,
EEOC Request No. 05900850 (September 7, 1990).
The Commission finds that the complainant's request does not meet the
regulatory criteria of 29 C.F.R. � 1614.405(b), in that, the request does
not identify a clearly erroneous interpretation of material fact or law,
nor does it show that the underlying decision will have a substantial
impact on the policies, practices or operation of the agency.
The Commission's review of an appeal is a de novo review of the record
and, therefore, all record documents are examined and considered. See 29
C.F.R. � 1614.405(a). We find that complainant did not provide probative
evidence to support any of his arguments, for example, he did not show
that the SO, the decision maker herein, was aware of his EEO activity.
Complainant has the ultimate burden of persuasion to show that the
agency acted on the basis of a prohibited reason, but he must do so by
preponderant evidence.<2> 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. The decision in EEOC Appeal No. 01A60469 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 (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
______8-31-06____________
Date
1Complainant is advised that his complaint, Agency No. 11032005003, is
on appeal to the Commission and pending a decision; it has been docketed
as EEOC Appeal No. 01A63036.
2See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981);
St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711 (1983).