0520110618
10-21-2011
Harold B. Davis, Complainant, v. Gary Locke, Secretary, Department of Commerce (Bureau of the Census), Agency.
Harold B. Davis,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.
Request No. 0520110618
Appeal No. 0120112217
Agency No. 096300966D
DENIAL
Complainant timely requested reconsideration of the decision in Harold
B. Davis v. Department of Commerce, EEOC Appeal No. 0120112217 (July
22, 2011). 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).
BACKGROUND
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, a former Assistant Manager for Recruiting with the
Agency’s Phoenix Local Census Office, Denver Regional Census Center,
alleged discrimination based on age (over 40) when, on August 27, 2009,
he was terminated from his employment for organizing and facilitating
a lottery pool in his office and using government resources to record
the lottery pool participation.
Assuming, arguendo, that Complainant established a prima facie case
of age discrimination, the previous decision found that the Agency
articulated legitimate, nondiscriminatory reasons for the issuance
of the termination notice. The Agency stated that Complainant was
terminated because he used government resources to initiate, organize,
and promote lottery activities in the government workplace and for lying
about his involvement. Although Complainant claimed that the Agency
did not terminate twelve other employees who also participated in the
lottery pool, the previous decision found that, unlike Complainant,
none of the participants, identified by him, indicated that they ever
initiated, organized, or promoted the lottery activities as Complainant
did or that they were untruthful when questioned. Accordingly, the
previous decision found that Complainant did not establish that he was
discriminated against.
ARGUMENTS ON RECONSIDERATION
In his reconsideration request, Complainant argued, and provided excerpts
from statements of other employees in support, that his supervisor made
age related comments that indicated he was bias against older employees,
i.e., “Anyone over 60 should be in a geriatric unit.”
The Agency, among other things, argued that Complainant’s request did
not satisfy the criteria for reconsideration.
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.
After reconsidering 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 matters raised by Complainant were already considered
by the Commission at the time the previous decision was issued.1 The
Commission has long held that, in a reconsideration request, it is
improper to merely reargue facts that have already been considered.
See Bartlomain v. U.S. Postal Serv., EEOC Request No. 05910436 (Oct. 10,
1991). Complainant has not established that the previous decision
clearly erred in affirming the Agency’s finding of no discrimination.
The decision in EEOC Appeal No. 0120112217 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
_10/21/11_________________
Date
1 The excerpts provided by Complainant were from statements that are
contained in the appellate record. We also note that in his statement
on appeal, Complainant raised the matter of his supervisor allegedly
saying that, “Anyone over 60 should be in a geriatric unit.”
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0520110618
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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