05980508
01-19-2001
Jeffery P. Gray, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Jeffery P. Gray v. Department of the Army
05980508
January 19, 2001
.
Jeffery P. Gray,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Request No. 05980508
Appeal No. 01961861
Agency No. 94-06-0116
Hearing No. 100-94-7890X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Jeffery
P. Gray v. Department of the Army, EEOC Appeal No. 01961861 (February
27, 1998).<1> 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 order to merit the reconsideration of a prior Commission decision, the
requesting party must submit written argument which 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. Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989). A Request for Reconsideration is not merely
a form of a second appeal. Regensberg v. U.S. Postal Service, EEOC
Request No. 05900850 (September 7, 1990).
The complainant filed an EEO complaint alleging that he was discriminated
against on the bases of age (46), race (White), and disability (advanced
age), when the agency disqualified him from competing for the position
of Criminal Investigator, GS-1811-12, as advertised under vacancy
announcement DEU-93-2. An EEO administrative judge (AJ), without a
hearing, found that the age discrimination claim failed because the Age
Discrimination in Employment Act (ADEA) did not apply to the agency's
decision to disqualify the complainant. Specifically, the AJ found that
pursuant to 5 U.S.C. � 3307(e),<2> the agency's imposition of the 35-year
maximum age limit fell within the ambit of the statute and therefore,
the complainant could not prevail. The record shows that in 1988,
the Deputy Secretary of Defense issued Department of Defense Directive
(DODD) 1402.4, which established 35 as the maximum age for law enforcement
positions.<3> The complainant argued that section 3307 did not shield
the agency's action because the agency official who set the maximum age
limit lacked the authority to do so.
The AJ further found that the complainant's disability discrimination
claim failed because the complainant essentially argued that the
agency established the maximum entry age limit because it perceived
advanced age as a disability. Moreover, the complainant's age claim
being defeated was dispositive of his disability discrimination claim.
Additionally, the AJ found that the complainant's race discrimination
claim of disparate impact failed because he failed to show a statistical
disparity and a nexus between the disparity and the maximum entry age
policy. The agency adopted the AJ's decision finding no discrimination.
The appeal decision summarily affirmed the agency's final decision which
had adopted the AJ's recommended findings and conclusions.
On review, the complainant argues that the Commission continues to
misinterpret DODD 1402.4, which specifically requires the Secretary of
Defense to identify those positions subject to the age requirement. Here,
the Assistant Secretary of Defense approved the Criminal Investigator
position as being subject to the maximum age limit of 35-years upon entry.
The complainant continues to argue that the Assistant Secretary of Defense
was not authorized to make that determination because the ability to
delegate the discretionary authority of 5 U.S.C. � 3307(e) is limited by
5 C.F.R. � 842.802, as promulgated by the Office of Personnel Management
(OPM).
After a careful review of the complainant's request for reconsideration,
the previous decision, the AJ's findings and the entire record, the
Commission finds no error. Accordingly, 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. 01961861
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
January 19, 2001
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 29 C.F.R. Part 1614 in deciding the present
appeal. The regulations, as amended, may be found at the Commission's
website at www.eeoc.gov.
2 5 U.S.C. � 3307(e) states, that: �[t]he head of an agency may determine
and fix the minimum and maximum age limit for an original appointment
to a position as a firefighter or law enforcement officer, as defined
by section 8401(14) or (17) respectively, of this title.�
3 The AJ noted that 10 U.S.C. � 132 authorizes the Secretary of Defense
to assign powers and duties to the Deputy Secretary.