05a00863
08-23-2000
Wayne F. Horkheimer, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Wayne F. Horkheimer v. Army
05A00863
August 23, 2000
.
Wayne F. Horkheimer,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Request No. 05A00863
Appeal No. 01A00527
Agency No. 9712H3460
Hearing No. 100-99-7126X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Wayne
F. Horkheimer v. Army, EEOC Appeal No. 01A00527 (April 21, 2000).<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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.405(b)). For the reasons
set forth herein, complainant's request is denied.
Complainant filed a complaint alleging discrimination based on sex
(male) and age (d.o.b, 12/5/50) when he was non-selected for the
position of Supervisory Auditor, GS-14, in Fort Hood, Texas (position
1), or in Huntsville, Alabama (position 2). After an investigation,
complainant requested a hearing before an AJ. The AJ issued a summary
judgment decision finding no discrimination. The AJ concluded that
complainant failed to establish an inference of discrimination relating
to the non-selection for the Huntsville, Alabama position (position 2)
because he was not referred for consideration, and failed to adduce
probative evidence that would show that the nonreferral was based on
discriminatory animus. The AJ noted that the record contained only a
referral nomination completed by the complainant for the position in
Fort Hood, Texas (position 1). The AJ also found that the agency
proffered legitimate, nondiscriminatory reasons for not selecting
complainant for the Fort Hood, Texas position (position 1) and that the
complainant failed to establish that those reasons were pretext for sex
or age discrimination. The agency issued a final decision adopting
the AJ's finding of no discrimination and the complainant appealed.
The previous decision adopted the AJ's decision finding no discrimination.
On request for reconsideration, the complainant has submitted the same
exact arguments previously raised on appeal.
In light of the above, after a review of the complainant's request
for reconsideration, 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. 01A00527
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.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
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 ORDEPARTMENT
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
August 23, 2000
__________________
Date
FOR OFO INTERNAL CIRCULATION ONLY
Initial
Date
To: Carlton M. Hadden
Director, Office of Federal Operations
To: Hilda Rodriguez
Request Number
05A00863
Appeal Number
01A00527
Agency Number
9712H3460
Hearing Number
100-99-7126X
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:
Title
Name
Initial
Date
Attorney:
Roseanne Medina
8/9/00
Supervisor:
Mary Jean Moore
Division Director:
Marie Fitzgerald
Complainant(s):
Wayne F. Horkheimer
Agency:
Army
Decision:
Denied
Statute(s) Alleged:
Title VII, ADEA
Basis(es) Alleged:
GM, OA
Issue(s) Alleged:
P3
Where Discrimination Is Found (Only):(A) Basis(es) for Finding:(B)
Issues in Finding:
Typist/date/diskette
RM4 / 8/9/00
Spell Check
YES
Team Proofed
Date
05 CASE DISPOSITION SHEET
Complainant
Agency
Request No.
Wayne F. Horkheimer
Army
05A00863
Check ALL applicable codes
PROCEDURAL DECISION
No finding by OFO on allegations of discrimination or no discrimination,
or on allegations of breach of settlement agreement or lack of breach
of settlement agreement.
? 3K - Procedural Decision
MERITS DECISION
Must include finding by OFO of discrimination or no discrimination,
or of breach of settlement agreement or lack of breach of settlement
agreement on at least one issue.
? 4A - Merits Decision
? 6Q - 01 decision was procedural
? 6R - 01 decision was merits
? 6Q - 01 decision was procedural
? 6R - 01 decision was merits
? 3L - RTR vacated / remanded ALL of agency's
merits decision
? 3M - RTR reversed / remanded agency's procedural
decision
? 6E - RTR found discrimination
List Basis codes:
List Issue codes:
? 6F - RTR found no discrimination
? 6H - RTR affirmed 01 decision
? 6I - RTR reversed 01 decision
? 6J - RTR modified 01 decision (NOTE: if affirmed in
part and reversed in part, then 3M code required)
? 6M - RTR vacated 01 decision (NOTE: 01 decision MUST
be merits and ALL issues vacated)
? 6U - Reconsider on own motion
? 6S - RTR found settlement breach
? 6T - RTR found no settlement breach
? 6H - RTR affirmed 01 decision
? 6I - RTR reversed 01 decision
? 6J - RTR modified 01 decision
(affirmed in part, reversed in part)
? 6U - Reconsider on own motion
? 4H - RTR affirmed FAD
? 4I - RTR reversed FAD
? 4J - RTR modified FAD
? 4H - RTR affirmed FAD
? 4I - RTR reversed FAD
? 4J - RTR modified FAD (NOTE: if affirmed in part and
reversed in part, then 3L code required if at least one
issue is remanded)
? 3L - RTR remanded PART of agency's merits decision. If
breach is basis, use of 3L also requires 4I code.
? 3P - Adverse inference
? 4Q - Compliance required
RTR DENIED
Denials require only 3K and 6Q or 6R (above) and 6D and 6N or 6P (below),
for a total of 4 codes, and 4Q if applicable
? 6D - RTR Denied
? 4N - RTR affirmed AJ
? 4O - RTR reversed AJ
? 4P - RTR modified AJ
? 4T - AJ issued Summary Judgment decision
? 4U - RTR affirmed AJ Summary Judgment
? 4V - RTR reversed AJ Summary Judgment
? 6N - Failure to meet RTR criteria
? 6P - Other procedural defect
? 3H - RTR denied attorney's fees
? 3I - RTR approved attorney's fees
? 3J - RTR modified attorney's fees
? 4Q - Compliance required on 01
OTHER CLOSURE CODES
Do NOT include 3K or 4A codes
? 3C - Duplicate docket #
? 3D - Withdrawal
? 3E - Complaint settled
? 3G - Other letter closure
? 3R - Return to agency for consolidation
? 3S - Return to AJ for consolidation
? 7N - Civil action filed
? 4Q - Compliance required on 01
Revised - 2/3/00
1On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.