0520100051
12-01-2009
Victor Hadnot, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Victor Hadnot,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Request No. 0520100051
Appeal No. 0120080049
Hearing No. 270-2005-00064X
Agency No. ARCENOL04APR0003
DENIAL
Complainant timely requested reconsideration of the decision in Victor
Hadnot v. Department of the Army, EEOC Appeal No. 0120080049 (September
25, 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 the underlying complaint, complainant alleged that he was discriminated
against on the basis of age (49) when, in April 2004, during the hiring
process for a Surveying Technician position, he was required to take a
physical examination, which he believed to be far beyond what the job
announcement indicated when he applied for the position. Specifically,
the examination required that complainant undergo an EKG. In EEOC Appeal
No. 0120080049, the Commission affirmed the AJ's decision, following
a hearing, that the agency did not discriminate against complainant
based on age. In this regard, the previous decision found substantial
evidence in the record to support the AJ's determination that an EKG was
required of all persons undergoing pre-employment physicals, regardless
of age.
In his request for reconsideration, complainant reiterates arguments
previously made, in particular, emphasizing that "the new employee
physical checklist violates my civil rights."1 He also suggests
that the AJ erred in crediting the Coordinator of Occupational
Health's testimony that the EKG was required of all persons undergoing
pre-employment physicals, regardless of age, when in fact, the document
that was mailed to complainant concerning the requirements of the
physical examination "speaks for itself." 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
(rev. Nov. 9, 1999), at 9-17.
This Commission carefully considered all of the record evidence at the
time it rendered the initial decision, and complainant has offered
no persuasive reason why this decision should be reconsidered now.
Therefore, 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. 0120080049 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
______12/01/09____________
Date
1 The checklist was a document that indicated the specific tests that
would be required for the physical. A notation located next to EKG
provided "(pre-placement and over age 40)."
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0520100051
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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