05A30124
01-13-2003
Nicasio O. Flores, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Nicasio O. Flores v. Department of Labor
05A30124
January 13, 2003
.
Nicasio O. Flores,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Request No. 05A30124
Appeal No. 01A13057
Agency Nos. 00-11-009; 00-11-010; 00-04-011;
00-06-012; 00-05-013; 00-09-014; 00-03-085
DENIAL OF REQUEST FOR RECONSIDERATION
Nicasio O. Flores (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Flores v. Department of Labor, EEOC Appeal No. 01A13057
(September 19, 2002). 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).
In he underlying complainant filed six formal complaints on October 5,
1999, alleging that he was discriminated against when:
on the bases of his national origin (Hispanic), sex (male), and age (age
58, D.O.B. May 7, 1942), he was not selected for the Deputy Executive
Secretary for Operations, GS-0301-15 position, Vac. No. EXEC-SECY-99-014
(Complaint No. 00-11-009);
on the bases of national origin, age and reprisal for prior EEO activity,
he was not selected for the Senior Executive Candidate Program,
CD-0301-00, Vac. No. SES-99-21 (Complaint No. 00-11-010);
on the bases of national origin, age and reprisal, he was denied
promotion to the Deputy Regional Administrator position in Atlanta,
Vac. No. ESA-99-21 (Complaint No. 00-04-011);
on the bases of national origin, age and reprisal, he was denied
promotion to the Deputy Regional Administrator position in Dallas,
Vac. No. ESA-99-26 (Complaint No. 00-06-012);
on the bases of national origin, age, sex and reprisal, he was denied
promotion to the Deputy Regional Administrator position in Chicago,
Vac. No. ESA-99-22 (Complaint No. 00-05-013); and
on the bases of national origin, age, and reprisal, he was denied
promotion to the Deputy Regional Administrator position in San Francisco,
Vac. No. ESA-99-31 (Complaint No. 00-09-014).
Complainant further filed a seventh formal complaint, alleging that
he was discriminated against on the bases of national origin, age,
and reprisal when he was denied promotion to the Deputy Regional
Administrator position in Philadelphia, Vac. No. ESA-99-60 (Complaint
No. 00-03-85). The underlying appeal decision found that complainant
failed to demonstrate by a preponderance of the evidence that he was
not selected for any of the positions above because of his membership
in one or more protected groups.
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. As previously noted,
although complainant has excellent qualifications, in order to prevail,
there must be some evidence that discriminatory animus was a motivating
factor in his non-selections. We reiterate that despite complainant's
excellent qualifications, he has not established, by a preponderance of
the evidence, that the agency's reasons for the non-selections at issue
are pretexts for discrimination or retaliation, nor does the evidence
of record indicate that complainant's age actually played a role in the
employer's decision-making process or have a determinative influence
on the outcome. Therefore, the decision in EEOC Appeal No. 01A13057
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
January 13, 2003
__________________
Date