05A20490
06-26-2002
Guadalupe Garza, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Guadalupe Garza v. Department of the Army
05A20490
June 26, 2002
.
Guadalupe Garza,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Request No. 05A20490
Appeal No. 01A15398
Agency No. BHAAF00002A0130
Hearing No. 360-AO-8495X
DENIAL OF REQUEST FOR RECONSIDERATION
Guadalupe Garza (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Guadalupe Garza v. Department of the Army, EEOC
Appeal No. 01A15398 (January 29, 2002). Complainant alleged that
he was discriminated against on the basis of his age (D.O.B. June 7,
1943) when he was not selected for the position of GS-11 Industrial
Specialist in November 1999, in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
EEOC Regulations provide that the Commission may, in its discretion,
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 asserts that he should have been selected for the GS-11
Industrial Specialist position in November 1999, for various reasons.
First, complainant believes that he is entitled to the position because
of the length of his tenure at the agency. Second, the agency's use
of the Facility Engineering Management software program as a selection
criterion was improper because that skill was not referenced in the
vacancy announcement. Finally, complainant asserts that the details
given to the selectees technically violated the union agreement in that
they were longer than ordinary details. We have considered all of these
arguments. Even if we assume that complainant's arguments are true,
they do not reveal that age was the determinative factor in complainant's
non-selection. The agency's departure from strict procedures is not
enough, alone, to establish by a preponderance of the evidence that
the agency intentionally discriminated against complainant on the basis
of his age. We note that complainant does not directly respond to the
agency's assertion that it selected the best qualified individuals for the
positions. After a review of complainant's request for reconsideration,
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. 01A15398 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
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
June 26, 2002
__________________
Date