0520120416
09-19-2012
David L. Pompey, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Logistics Agency), Agency.
David L. Pompey,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Request No. 0520120416
Appeal No. 0120120431
Agency No. DLAF100149
DENIAL
Complainant timely requested reconsideration of the decision in David L. Pompey v. Department of Defense, EEOC Appeal No. 0120120431 (April 5, 2012). 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).
The facts and procedural background are set forth in the previous decision and are incorporated herein by reference. We note the following salient facts: Complainant alleged that he was discriminated against on the bases of age and race when he was not selected for the position of Supervisory IT Specialist, GS-2210-13. The selecting official indicated that he choose the selectee because of his significant supervisory experience in the Agency at the GS-13 level. The selectee was already a GS-13 supervisor in the Agency and was already performing work at the level of the position being filled. The decision further found that Complainant did not establish that his qualifications were plainly superior to those of the selectee. Finding no evidence of pretext, the previous decision affirmed the Agency's finding of no discrimination.
In his request, Complainant, among other things, maintained that "consideration was not sufficiently made on the points" he raised. Specifically, he indicated that although the selecting official maintained that he was not aware of Complainant's race and age, this information was on his resume. He also repeated his contention that his experience and training were "second to none."
We remind Complainant that 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) (rev. Nov. 9, 1999), at 9-17. A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Here, we find no evidence that Complainant has met the criteria for reconsideration. The selecting official indicated that he was not aware of Complainant's race or age during the period of the selection. Although Complainant stated that this information was contained on his resume, we note that the selecting official indicated that he reviewed resumes via the Automated Staffing Program on-line system. Our review of the copy contained in the record does not indicate that Complainant's race was listed. Also, although his date of birth and age were not specifically listed, we do note that his high school graduation year, 1964, was indicated. Likewise, although Complainant has an impressive record of experience and training, we agree with the previous decision that he did not show that his qualifications were observably superior to those of the selectee, who was already a GS-13 supervisor with significant supervisory experience in the position.
After reviewing 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. 0120120431 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
___9/19/12_______________
Date
2
0520120416
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120416