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