0520110670
02-17-2012
Kurt R. Fulton, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Kurt R. Fulton,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520110670
Appeal No. 0120100576
Agency No. 200H-0646-2008103406
DENIAL
Complainant timely requested reconsideration of the decision in Kurt
R. Fulton v. Department of Veterans Affairs, EEOC Appeal No. 0120100576
(August 4, 2011). 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 affirmed the final decision of the Agency, which
found that Complainant had not been discriminated against based on his
claimed disability and in reprisal for protected EEO activity when he
was not hired for two positions to which he had applied. Complainant
argued in his request for reconsideration that the previous decision
was incorrect in its assessment of the veracity of the testimony from
the selecting officials as to why Complainant was not hired, and the
circumstances of his previous work at the Agency in a Compensated Work
Therapy Program. The Agency submitted a statement in opposition to the
request for reconsideration in which it urged the Commission to deny
Complainant’s request.
We find that Complainant’s request for reconsideration fails to show
that our previous decision involved a clearly erroneous interpretation of
fact or law, or that it would have a substantial impact on the policies,
practices or operations of the Agency. Complainant submitted documents
and advanced arguments in his request for reconsideration that were
advanced, and considered, in the initial appeal. We note that a request
for reconsideration is not a second form of appeal. See, e.g., Lopez
v. Dep’t of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007).
Complainant does not otherwise show that the previous decision was
clearly erroneous.
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. 0120100576 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
February 17, 2012
Date
2
0520110670
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013