0520090088
01-06-2009
Miloslav Muller, Complainant, v. Ed Schafer, Secretary, Department of Agriculture, Agency.
Miloslav Muller,
Complainant,
v.
Ed Schafer,
Secretary,
Department of Agriculture,
Agency.
Request No. 0520090088
Appeal No. 0120083137
Agency No. APHIS200700044
DENIAL
Complainant timely requested reconsideration of the decision in Miloslav
Muller v. Department of Agriculture, EEOC Appeal No. 0120083137 (September
24, 2008). 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).
Complainant filed a formal complaint alleging discrimination in reprisal
for prior EEO activity when on October 12, 2006, he learned that he was
not selected for the position of supervisory VMO, Area Veterinarian in
Charge, GSD-701-13/14, Vacancy Announcement 6VS-2006-0183, Albuquerque,
New Mexico.1
After an investigation, complainant requested a hearing before an
EEOC Administrative Judge. The AJ assigned to the case determined
that there were no material issues in dispute, and that a decision
finding no discrimination was appropriate. Specifically, the AJ found
complainant was not the highest ranked applicant, and the selectee had
strong management skills. The AJ found complainant failed to present
sufficient evidence that would suggest the agency's reasons for its
actions are a pretext for discrimination.
In his Request, complainant argues that the EEOC District Office which
heard his complaint did not have jurisdiction, and also contends that
the agency artificially rated another employee too high.
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. Complainant failed to present sufficient evidence that
would establish the prior decision is clearly erroneous. The decision
in EEOC Appeal No. 0120083137 remains the Commission's final 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
January 6, 2009
Date
1 Another issue was withdrawn prior to the filing of the appeal, and is
not the subject of this decision.
??
??
??
??
2
0520090088
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0520090088