0520090620
01-12-2010
Phillip L. Deporter, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
Phillip L. Deporter,
Complainant,
v.
Tom Kilgore,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Request No. 0520090620
Appeal No. 0120073427
Agency No. 1211-2007010
DENIAL
Complainant timely requested reconsideration of the decision in Phillip
L. Deporter v. Tennessee Valley Authority, EEOC Appeal No. 0120073427
(June 11, 2009). 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 his underlying complaint, complainant alleged that he was subjected to
harassment from February 3, 2004 until the day he was forced to retire on
November 14, 2006, based on his sex (male), age (51) and in reprisal for
prior protected EO activity.1 In DePorter v. Tennessee Valley Authority,
EEOC Appeal No. 0120073427 (June 11, 2009), the Commission affirmed the
FAD finding that complainant failed to demonstrate by a preponderance
of the evidence that the agency's reasons were pretextual or motivated
by intentional discrimination.
In complainant's request for reconsideration, he contends that the
Commission decision was based on "flawed, inaccurate and incomplete
information" submitted by the agency. Complainant maintains that the
agency suppressed evidence, refused to conduct an adequate investigation
and interviewed only selected witnesses. Complainant further contends
that the agency's action also violated the Whistleblower Protection Act.
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). Because we find that the appellate decision does not involve a
clearly erroneous interpretation of law or fact regarding these arguments,
we deny complainant's request for reconsideration on these matters. We
note that complainant contends that agency's action also violated the
Whistleblower Protection Act. The Commission does not have jurisdiction
over Whistleblower Protection Act claims. See Reavill v. Department of
the Navy, EEOC Appeal No. 05950174 (July 19, 1996).
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 any argument or evidence that
would establish that the prior decision involved a clearly erroneous
interpretation of material fact or law. The decision in EEOC Appeal
No. 0120073427 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 (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 12, 2010
__________________
Date
1 Complainant cited eight separate incidents, including constructive
discharge.
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2
0520090620
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520090620