0520110723
03-06-2012
Marcus R. Walls, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Marcus R. Walls,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Request No. 0520110723
Appeal No. 0120100780
Hearing No. 450-2008-00350X
Agency No. DLAN-08-0706
DENIAL
Complainant timely requested reconsideration of the decision in Marcus
R. Walls v. Department of Defense, EEOC Appeal No. 0120100780 (August
12, 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).
BACKGROUND
Complainant applied for the position of Crane Operator. On November 19,
2007, the selecting official informed him that he had not been chosen.
Complainant then asked the selecting official for contact information
for EEO, and the selecting official referred him to the bulletin board
outside his office. While Complainant was outside the office, a coworker
walked in to the selecting official’s office and asked whether he had
chosen someone for the position. The selecting official commented that
Complainant was going to file an EEO complaint. Complainant overheard
this comment and immediately informed the selecting official that he
had no right to discuss personal matters with anyone else.
Complainant filed a formal EEO complaint, alleging discrimination on
the basis of reprisal for prior EEO activity when: (1) the Agency did
not select him for the position of Crane Operator; (2) the selecting
official violated Complainant’s privacy by telling a coworker that
Complainant was going to file an EEO complaint.
The previous decision found substantial evidence in the record to
support an EEOC Administrative Judge’s (AJ) finding that the Agency
did not retaliate against Complainant for prior EEO activity. For the
nonselection, the Commission found that Complainant’s prior EEO
activity had occurred in 2004, and appeared to have no bearing on the
2007 hiring decision. Moreover, the Commission found that Complainant
failed to establish pretext, in part, because he did not show that he
was the clearly superior candidate compared to the selectee. Moreover,
the previous decision found that the fact that the selecting official
commented on Complainant’s intention to engage in future protected
EEO activity was not enough to establish retaliatory discrimination.
CONTENTIONS ON RECONSIDERATION
In his request for reconsideration, Complainant reiterates his previous
argument that the AJ’s “credibility determinations are inconsistent
with the facts and testimony presented in this case.” In particular,
the selecting official’s hearing testimony demonstrated that he
“viewed [Complainant] and the EEO process with such an extraordinary
amount of disdain that he was bound to carry out his discriminatory motive
of retaliation in his non-selection of [Complainant]. [The selecting
official’s] apparent despise of [Complainant] and the EEO process itself
shows his contempt to be deeply ingrained.” Complainant reiterates his
previous request for the Commission to review the record in its entirety.
ANALYSIS AND FINDINGS
“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), at 9-17 (Nov. 9, 1999). Here, Complainant
essentially raises the same arguments that he had previously made on
appeal, which was to ask that we reweigh and substitute the AJ’s
credibility determinations with our own. Upon review, we determine
that the previous decision did not clearly err in finding substantial
evidence to support the AJ’s finding that Complainant could not
establish pretext. 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. 0120100780 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
____3/6/12______________
Date
2
0520110723
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110723