05a10112
02-14-2001
Louis Jasmine, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Louis Jasmine v. Department of Veterans Affairs
05A10112
February 14, 2001
.
Louis Jasmine,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A10112
Appeal No. 01A04154
Agency No. 983364
DENIAL OF REQUEST FOR RECONSIDERATION
Louis Jasmine (complainant) initiated a request to the Equal Employment
Opportunity Commission (EEOC or Commission) to reconsider the decision in
Louis Jasmine v. Department of Veterans Affairs, EEOC Appeal No. 01A04154
(October 11, 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).
In his formal complaint, complainant alleged that he was subjected to
discrimination on the bases of race (African-American), color (black),
and sex (male) when he was not selected for the position of Health Systems
Specialist on July 13, 1998. The prior decision affirmed the agency's
finding of no discrimination. Therein, the Commission noted that although
complainant was qualified for the position, his qualifications were not
observably superior to those of the selectee. Moreover, the Commission
agreed with the agency's determination that the selectee appeared to
have been preselected, but noted that preselection is not unlawful under
Title VII, so long as it is not motivated by a discriminatory animus.
The Commission went on to find that complainant's evidence concerning
the lower percentage of Black males than White females in higher grade
positions was insufficient to establish discrimination, given that no
evidence of the racial and/or gender breakdown of applicants or the
relevant labor pool was provided.
In his request for reconsideration, complainant concentrates on the
lack of credibility of certain management officials. We note, however,
that the Commission considered the fact that the testimony of certain
selecting officials was unworthy of belief when reaching a finding of
no discrimination in the previous decision. In attempting to establish
that the Director of the Mental Health Service Line (SO), who chose the
selectee over complainant, was motivated by a discriminatory animus,
complainant contends that the agency was mistaken when it asserted that
SO had selected a Black male for a top position in the past. Again, this
argument was considered on appeal. Moreover, in response to complainant's
request for reconsideration, the agency provided additional evidence that
the Black male in question was competitively selected for the position
of Supervisory Social Worker. After a careful review of the record,
we find that complainant has not presented any evidence or argument
that was not previously considered by the Commission when we affirmed
the agency's final decision.
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. 01A04154 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.
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
February 14, 2001
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.