05a51042
08-05-2005
Thomas D. Wasser v. Department of Veterans Affairs
05A51042
08-05-05
.
Thomas D. Wasser,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A51042
Appeal No. 01A41455
Agency No. 2001-0516-2002101194
Hearing No. 150-2002-08503X
DENIAL
Thomas D. Wasser (complainant) timely requested reconsideration of
the decision in Thomas D. Wasser v. Department of Veterans Affairs,
EEOC Appeal No. 01A41455 (June 22, 2005). 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 the appellate decision, complainant alleged that the agency
discriminated against him on the basis of disability (partially ruptured
vocal chords/hoarseness) when he was terminated from employment, effective
January 7, 2002. Following a hearing before an Administrative Judge
(AJ), the AJ issued a decision finding no discrimination. The agency
fully implemented the AJ's decision. After a review of the record in
its entirety, the Commission affirmed the agency's final order.
In his request for reconsideration, complainant maintains that his
primary witness, was not allowed to testify because he was 15 minutes
late to the hearing, but that many accommodations were made for the
agency's witnesses and its attorneys. Complainant maintains that by
not allowing his witness to testify he could not establish factually
the quality or quantity of his disability, and how it affected the work
place environment and caused his employment termination. Complainant
also contends that he was serving at an Air Base in Saudi Arabia prior
to September 11, 2001, and upon returning to the agency, within a very
few days he was terminated. He maintains that the close proximity of
his military service and being terminated can not be ignored. Finally,
complainant contends that he is not interested in pursuing a civil suit
and his intention is merely to set the record straight.
The Commission finds that while it is unfortunate that his witness did
not arrive in a timely manner, complainant through the use of medical
documentation and his own testimony, could have established the quality
or quantity of his disability. Additionally, other than complainant's
own assertions, there is no evidence that complainant was terminated
because of his military service. Finally, although complainant may have
wanted to set the record straight, he did not show that the appellate
decision involved a clearly erroneous interpretation of material fact or
law or that the decision will have a substantial impact on the policies,
practices, or operations of the agency.
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. The decision in EEOC Appeal No. 01A41455 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 (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
____08-05-05______________
Date