0520120521
11-16-2012
David Ballantyne, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
David Ballantyne,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520120521
Appeal No. 0120121401
Agency No. 200H05422011105040
DENIAL
Complainant timely requested reconsideration of the decision in David Ballantyne v. Department of Veterans Affairs, EEOC Appeal No. 0120121401 (June 27, 2012). 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).
The previous decision found that Complainant's complaint was properly dismissed on the grounds that he filed it in an untimely manner, i.e., past the 15-day time limitation period.1 The previous decision also indicated that he failed to provide an adequate justification for extending the period. According to Complainant, due to a physical and emotional illness and a recent diagnosis of a heart condition, he was at home under his doctor's care during this period. The previous decision found that Complainant did not establish that he was so incapacitated by the condition that he was unable to meet the regulatory time limits.
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) (rev. Nov. 9, 1999), at 9-17. A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Here, we find no evidence that Complainant has met the criteria for reconsideration.
Complainant, in his request, maintains that he suffered a nervous breakdown and was under a doctor's care and was incapacitated for several weeks. He also maintains documentation exists that could substantiate his claim and that no one requested this "form of documentation." Again, the operative standard is whether Complainant has established that the previous decision erred in finding that he failed to provide an adequate justification for extending the 15-day time period. By his own admission, Complainant indicates that documentation exists that would support his position that he was too incapacitated to timely file, but it was not offered because no one requested said documentation. We note, however, that at the time he filed his appeal from the Agency's dismissal, Complainant was aware what the issues surrounding the dismissal were and reasonably should have provided whatever documentation he had for review. Accordingly, we find no error on the part of the previous decision.
After reviewing 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. 0120121401 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 (P0610)
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 (Z0610)
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
____11/16/12______________
Date
1 Complainant received notice of his right to file a formal complaint on November 9. He did not file his formal complaint until November 28.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0520120521
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120521