0520080424
05-15-2008
Normand Laberge, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Normand Laberge,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Request No. 0520080424
Appeal No. 0120064637
Agency No. 0563038005
Hearing No. 520-2006-00116X
DECISION ON REQUEST FOR RECONSIDERATION
Complainant timely requested reconsideration of the decision in Normand
Laberge v. Department of the Navy, EEOC Appeal No. 0120064637 (March
7, 2008). 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).
In the appellate decision, the Commission affirmed the agency's
final determination that it did not discriminate against complainant
on the basis of age (63) in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
when it decided to contract for asbestos removal services and limit
the duties of agency employees to small repair and maintenance work,
the effect of which denied complainant the opportunity to work overtime.
The decision followed the proper legal analysis and concluded that the
agency articulated legitimate, nondiscriminatory reasons for its actions,
and complainant failed to demonstrate pretext.
In his request, complainant repeated some of the arguments he made on
appeal and disputed minor factual statements that did not impact the
legal analysis. Complainant also sought a definition of "FAD," which
is an acronym for final agency decision or final order; asserted that
he filed a response to the proposal for summary judgment, which the AJ
noted in her initial paragraph, albeit referring to March instead of May;
challenged the finding that the agency's action was a "sound business
decision;"1 complained that the AJ ignored his argument of "perjury under
oath," which was not relevant to her decision, vague, and not presented
in a format for decision, such as a Motion; and sought clarification of
footnote 2.2 None of these arguments undermine or affect the finding that
complainant failed to prove that the agency discriminated against him.
In order to merit the reconsideration of a prior decision, the requesting
party must submit written argument that tends to establish that at least
one of the criteria of 29 C.F.R. � 1614.405(b) is met. The Commission's
scope of review on a request for reconsideration is narrow and is not
merely a second appeal. Lopez v. Department of the Air Force, EEOC
Request No. 05890749 (September 28, 1989); Regensberg v. USPS, EEOC
Request No. 05900850 (September 7, 1990). The Commission finds that
the complainant's request does not meet the regulatory criteria of 29
C.F.R. � 1614.405(b), in that, the request does not identify a clearly
erroneous interpretation of material fact or law, nor does it show that
the underlying decision will have a substantial impact on the policies,
practices or operation of the agency.
After review of 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. 0120064637 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
NOTICE OF COMPLAINANT'S RIGHTS - REQUEST TO RECONSIDER
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
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 (Z0408)
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
__5/15/2008________________
Date
1 Under the three-step analysis described in the U.S. Supreme Court's
decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to
prevail on a claim of discrimination such as complainant's, the ultimate
burden of proof lies with complainant, who must demonstrate that the
reasons articulated by the agency for its actions were not its true and
real reasons but were taken in order to discriminate against her/him and
influenced by legally impermissible criteria, e.g., complainant's age.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Thus,
complainant must show, through probative evidence not only that the
agency's decision was not a sound business action but that it was made
in order to discriminate against him.
2 As to footnote 2, the Commission may exercise its discretion to review
only those matters specifically raised by a complainant on appeal.
Chapter 9, Section IV.A., EEO Management Directive-110 (MD-110) (November
9, 1999), at p. 9-10 (available at www.eeoc.gov).
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0520080424
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0520080424