Barry Smith, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionSep 11, 2002
05A20930 (E.E.O.C. Sep. 11, 2002)

05A20930

09-11-2002

Barry Smith, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.


Barry Smith v. Department of Transportation

05A20930

September 11, 2002

.

Barry Smith,

Complainant,

v.

Norman Y. Mineta,

Secretary,

Department of Transportation,

Agency.

Request No. 05A20930

Appeal No. 01A10532

Agency No. 1-99-1065

DENIAL OF REQUEST FOR RECONSIDERATION

Barry Smith (complainant) timely initiated a request to the Equal

Employment Opportunity Commission (EEOC or Commission) to reconsider

the decision in Barry Smith v. Department of Transportation, EEOC

Appeal No. 01A10532 (June 13, 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 his complaint, complainant alleged that he was discriminated against

on the basis of age (48) when he was not selected for the position of

Supervisory Air Traffic Control Specialist (ATCS), FG-12, under vacancy

announcement number AEA-AAT-99-016-41057.

In the previous decision, the Commission affirmed the agency's

final decision which concluded that the agency had articulated a

nondiscriminatory reason for its actions. Specifically, we concluded

that the selectee was chosen because he had been temporarily promoted

twice to act in the position, and during those periods he had performed

very well. The record reveals that complainant did not demonstrate the

leadership, decisiveness and judgment the selecting official was looking

for in a Supervisory ATCS. We also concluded that complainant presented

insufficient evidence to support a finding that the selection process was

tainted with discriminatory animus against complainant based upon his age.

In his request for reconsideration, complainant disputes that he failed

to demonstrate the qualities of leadership, judgment and decisiveness

needed for the position. Complainant argues that the agency presents

no credible evidence to support this reason for his non-selection.

Complainant alleges that management gave him the same reason for his

non-selection as an earlier vacancy announcement in August 1998, and then

canceled the announcement. Complainant argues that the selectee did not

meet the Office of Personnel Management (OPM) qualifications requirement.

Complainant alleges that the selecting official asked him his age, which

he regarded as improper behavior. Complainant argues that he possess

the necessary qualities for the position, and that the agency's real

reason for his non-selection was that the selecting official wanted to

fill the position with a much younger person.

Complainant's arguments were considered in our previous decision.

We conclude that complainant failed to raise any argument or evidence

not previously considered in rendering the prior decision. Therefore,

he failed to show that the prior decision involved a clearly erroneous

interpretation of material fact or law or had a substantial impact on

the policies, practices, or operations of the agency.

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. 01A10532 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

September 11, 2002

__________________

Date