0520120601
02-08-2013
Robert H. Leslie, Jr., Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Robert H. Leslie, Jr.,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Request No. 0520120601
Appeal No. 0120102527
Agency No. DLAB-08-0753
DENIAL
Complainant timely requested reconsideration of the decision in Robert H. Leslie, Jr. v. Department of Defense, EEOC Appeal No. 0120102527 (July 19, 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).
Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the bases of race (Caucasian), color (White), age (55), and in reprisal for prior protected EEO activity when it failed to select him for a GS-14 Supervisory Property Disposal Specialist (West) position. Complainant further alleged that the Agency selected a Hispanic candidate (Cl) because it wanted to address an underrepresentation of minorities in the position.
The Agency's final decision found that Complainant failed to prove that the Agency subjected him to discrimination as alleged. In our previous decision, the Commission noted that three interview panel members stated that C1 did very well during his interview, and his responses were consistent with the organization's goals. The Commission further noted that the Agency stated that Complainant would not have been selected even absent a notation on the merit certification that stated that minorities were "underrepresented" in this position. The Commission found that Complainant failed to prove by a preponderance of the evidence that the Agency's articulated reasons were pretext for unlawful discrimination.
In his request for reconsideration, Complainant reiterates his appellate contention that five EEO complaints were filed against the selecting official for the position. Complainant also contends that a sex discrimination complaint was also filed against C1 regarding his hiring practices, but C1 did not tell the truth about EEO claims filed against him in his deposition statement. Complainant maintains that management improperly ignored C1's EEO violations when it selected him for the promotion.
We note 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; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, 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. Complainant has not done so here. In so finding, we note that Complainant's arguments regarding EEO complaints filed against C1 and the selecting official were fully considered by the Commission on appeal. Nevertheless, Complainant failed to establish by a preponderance of the evidence that the Agency's non-discriminatory explanations were pretext for unlawful discrimination. Consequently, Complainant has not estsblished that our previous decision was clearly erroneous.
Therefore, 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. 0120102527 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
February 8, 2013
Date
2
0520120601
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120601