0520070833
09-19-2007
Joseph L. Barone, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Contract Management Agency), Agency.
Joseph L. Barone,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Contract Management Agency),
Agency.
Request No. 0520070833
Appeal No. 0120071477
Agency No. YS050061
DENIAL
Complainant timely requested reconsideration of the decision in
Joseph L. Barone v. Defense Contract Management Agency, EEOC Appeal
No. 0120071477 (July 12, 2007). 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).
In the appellate decision, complainant alleged that he was discriminated
against on the basis of age (D.O.B. 09/10/46) when he was not selected
for the position of Contract Management Deputy, GS-15. The agency issued
a final agency decision (FAD) finding no discrimination. The Commission
affirmed the decision.
In his request for reconsideration, complainant contends that the
Commission failed to properly consider the ten irregularities that he
pointed out with the selection process. Complainant argues that the
Commission addressed each issue independently instead of in their
totality. Complainant also alleges that the Commission failed to
address his nonselection of a position whose duty station was slated to
be in Philadelphia but after the selectee was giving the position he was
allowed to stay in Washington, D.C., which suggested to complainant that
the selectee was pre-selected and it was the agency's intent to hire a
younger manager.
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 Commission finds that complainant failed to show
that the appellate decision involved a clearly erroneous interpretation
of material fact or law or that the decision will have a substantial
impact on the policies, practices, operations of the agency. First,
the Commission notes that all of complainant's arguments were considered.
Moreover, the Commission has long held that an agency has broad discretion
to set policies and carry out personnel decisions and that it will not
be second-guessed by a reviewing authority absent evidence of unlawful
motivation. This means that even if the selectee were pre-selected, as
long as discriminatory factors were not involved in the selection process,
the selection will not be overturned. Further, we find that complainant
has not shown that the disparities in qualifications between him and
the selectee are "of such weight and significance that no reasonable
person, in the exercise of impartial judgment, could have chosen the
[selectee] over [him] for the job in question." Ash v. Tyson Foods,
Inc., 190 Fed.Appx. 924, 88 Empl. Prac. Dec. P 42,608 (11th Cir. 2006),
cert. denied, 127 S.Ct. 1154 (Jan. 22, 2007). The Commission agrees that
complainant failed to show that his age was a factor in his nonselections.
Accordingly, the decision in EEOC Appeal No. 0120071477 remains the
Commission's final 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 (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
____9/19/07______________
Date
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0520070833
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0520070833