01A52959
07-21-2006
Joseph P. Malloy, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Joseph P. Malloy,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A52959
Agency No. 200L06032004101
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 3, 2005 final decision in the above-entitled
matter. Complainant alleged that the agency discriminated against him on
the basis of age (D.O.B. October 4, 1949) when:
1. on April 30, 2003, he was not selected for the position of Program
Specialist, GS-9, under Vacancy Announcement No. 03-91;
2. on May 28, 2003, he was not selected for the position of Program
Specialist, GS-11, under Vacancy Announcement No. 03-88;
3. on May 28, 2003, he was not selected for the position of Patient
Services Assistant, GS-5, under Vacancy Announcement No. 03-96;
4. on August 22, 2003, he was not selected for the position of Program
Support Assistant, GS-7, under Vacancy Announcement No. 03-134;
5. on October 8, 2003, he was not selected for the position of Patient
Services Assistant, GS-4, under Vacancy Announcement No. 03-146;
6. on October 28, 2003, he was not selected for the position of
Program Support Assistant, GS-6, under Vacancy Announcement No. 03-
121; and
7. on January 28, 2004, he was not selected for the position of
Housekeeping Aide, WG-1, under Vacancy Announcement No. 03-132.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision.
The record reflects that complainant failed to establish by a preponderance
of the evidence that he was discriminated against as he alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this case
if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and
arguments must be submitted to the Director, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C.
20036. In the absence of a legible postmark, the request to reconsider
shall be deemed timely filed if it is received by mail within five days of
the expiration of the applicable filing period. See 29 C.F.R. � 1614.604.
The request or opposition must also include proof of service on the other
party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only in
very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. If you file
a request to reconsider and also file a civil action, filing a civil action
will terminate the administrative processing of your complaint.
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
_____07-21-06_____________
Date