0520120355
06-21-2012
David L. Smith, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
David L. Smith,
Complainant,
v.
Tom Kilgore,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Request No. 0520120355
Appeal No. 0120121443
Agency No. TVA2012019
DENIAL
Complainant timely requested reconsideration of the decision in David L. Smith v. Tennessee Valley Authority, EEOC Appeal No. 0120121443 (March 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).
Complainant contacted an EEO Counselor and alleged that from 2002 to July 30, 2011 and continuing, his receipt of monthly longevity retirement distribution, instead of a compensatory disability retirement distribution, has been discriminatory. Informal efforts to resolve Complainant's concerns were unsuccessful. Complainant filed a formal complaint based on disability, and then amended his complaint to add the following claim:
the Director of Retirement Management did not review Complainant's file to determine the presence and contents of a Form 1444 and report his findings nor did he submit Complainant's disability retirement application for reconsideration and re-vote at the August 2011 Retirement Plan Board.
The Agency dismissed the complaint for failure to make timely EEO contact. Specifically, the Agency found Complainant's disability retirement was denied in 1993, and subsequent reconsideration requests were also denied in 1999. His application for Deferred Special Service retirement benefits was approved in 2002. Although Complainant alleged that each deferred retirement payment constituted a new claim of discrimination, the Agency disagreed. The prior decision affirmed, and found that Complainant waited years after retiring to contact an EEO Counselor, and was untimely. Furthermore, the prior decision found subsequent payments for retirement benefits did not constitute a new unlawful employment practice, and as such, the Lilly Ledbetter Fair Pay Act of 2009, Pub.L.No. 111-2, 123 Stat.5 (2009), was not applicable.
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. Complainant failed to present evidence that would establish the prior decision involved a clearly erroneous interpretation of material law or fact. The decision in EEOC Appeal No. 0120121443 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
06/21/2012
__________________
Date
2
05-2012-0355
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120355