0520110091
01-14-2011
Joaquin Liborio, Complainant, v. Robert M. Gates, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.
Joaquin Liborio,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense
(Defense Contract Audit Agency),
Agency.
Request No. 0520110091
Appeal No. 0120102277
Agency No. E0801
DENIAL
Complainant timely requested reconsideration of the decision in
Joaquin Liborio v. Department of Defense, EEOC Appeal No. 0120102277
(Sept. 30, 2010). 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
In the underlying case, Complainant alleged he was discriminated
against on the bases of national origin (Hispanic), and sex (male)
when he became aware on November 29-30, 2007, that he was not selected
for the position of Auditor (Technical Specialist), GS-0511-13, under
Job Opportunity Announcements (JOAs) EA-2008-0001 and EA-2008-0002.
At the conclusion of the investigation, the Agency provided Complainant
with a copy of the report of investigation and notice of her right to
request a hearing before an EEOC Administrative Judge (AJ).
On July 21, 2008, Complainant requested a hearing before an AJ.
On September 29, 2008, the AJ assigned to the case issued a Hearing and
Pre-Hearing Scheduling Order, requiring the parties to submit pre-hearing
reports no later than January 11, 2010 (EEOC Case No. 410-2008-00358X).
On January 25, 2010, the AJ dismissed Complainant's request for a hearing
because Complaint, through his attorney, failed to comply with the AJ's
order and did not submit a pre-hearing report. On February 1, 2010,
Complainant filed a Request for Reconsideration of the Order dismissing
his request for a hearing. The AJ denied the Request for Reconsideration
on February 12, 2010, and remanded the case to the Agency to issue
a Final Agency Decision (FAD) pursuant to 29 C.F.R. � 1614.110(b).
In its FAD the Agency concluded that Complainant failed to prove that
the he was subject to discrimination as alleged.
Specifically, the Agency found that Complainant failed to present
evidence to establish that the selecting official was motivated by
discriminatory animus. The Agency determined that Complainant's low
Auditor Promotion Appraisal (APA) score, in comparison to any of the
referred candidates, was in fact the reason for his non-selection for
the position. The Agency determined that the selecting official did
not err when he used this score to serve as one of the primary basis
on which selection was made. We issued an appellate decision affirming
the Agency's findings in its FAD.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant states that he was in fact
subject to discrimination by the Agency. He is asking that the Commission
reconsider its decision because his attorney did not represent him well
by failing to thoroughly present his case throughout the administrative
process and on appeal.
ANALYSIS AND FINDINGS
Complainant is reminded 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), Ch. 9
� VII.A. (Nov. 9, 1999). Because Complainant has not put forth any
arguments or contentions that were not previously considered in rendering
the underlying decision, the Commission finds that Complainant has not
demonstrated that the underlying decision involved a clearly erroneous
interpretation of material fact or law. Neither has Complainant argued
or demonstrated that the underlying decision would have a substantial
impact on the policies, practices, or operations of the Agency.
CONCLUSION
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 decision in EEOC Appeal No. 0120102277 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
____1/14/11______________
Date
2
0520110091
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110091