0520070526
06-14-2007
Nathan E. Defrain, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Nathan E. Defrain,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Request No. 0520070526
Appeal No. 0120061358
Agency No. 05EAVBBK016
DENIAL
The agency timely requested reconsideration of the decision in Nathan
E. Defrain v. Defense Commissary Agency, EEOC Appeal No. 0120061358
(April 3, 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 underlying case, complainant alleged that he was discriminated
against on the basis of his age (D.O.B. 12/24/31) in violation of the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., when on December 2, 2004, the agency allowed his
temporary assignment to expire, rather than extending it. The agency
investigated complainant's complaint and issued a Report of Investigation
to complainant. Complainant was informed of his right to request a
hearing before an EEOC Administrative Judge (AJ) or a final decision
from the agency. When complainant failed to respond within the requisite
time frame, the agency issued a final agency decision (FAD) finding that
he failed to establish that he was discriminated against as alleged.
Complainant appealed the FAD to the Commission.
In Defrain v. Defense Commissary Agency, EEOC Appeal No. 0120061358
(April 3, 2007), the Commission found that complainant established
that the agency discriminated against him based on his age when it
failed to extend his temporary assignment prior to its expiration.
In so finding, the Commission determined that complainant established
a prima facie case of age discrimination. Further the Commission found
that complainant put forth sufficient evidence to demonstrate that the
agency's proffered legitimate, non-discriminatory reason was a pretext
for age discrimination. Specifically, the agency provided that it
declined to extend complainant's assignment due to budgetary constraints.
However, the Commission determined that the preponderance of the evidence
demonstrated that the reason articulated by the agency was not worthy of
credence. Moreover, the Commission found that the evidence demonstrated
that the agency discriminated against complainant because of his age.
The Commission ordered the agency to offer complainant a temporary
appointment and to train employees with regard to their responsibilities
under the ADEA. Further, the Commission ordered the agency to provide
complainant with back-pay with interest.
In the instant case, the agency requests that the Commission reconsider
its decision. In support of its request, the agency argues that the
Commission committed four erroneous interpretations of fact. First,
the agency argues that the Commission erred in finding that the Store
Director's (SD) concern that the physical demands of the job may have been
more than complainant was capable of performing meant that the SD thought
complainant was too old to perform his duties. Second, the agency argues
that the Commission erred when it found that the agency wanted to make
way for younger workers because the SD failed to extend complainant's
temporary appointment, had younger employees performed complainant's
work, hired an assistant store manager, transferred a second temporary
appointment into a permanent position, and extended a third temporary
appointment. Third, the agency argues that the Commission erred in
finding that SD's negative reference for complainant was due to his age.
Finally, the agency argues that the Commission's erred in finding that
it violated its long standing practice of extending temporary employment
because of complainant's age.
We find that none of the agency's arguments are sufficiently persuasive
to establish that the Commission's interpretation of facts were clearly
erroneous. Moreover, a preponderance of the evidence supports the
Commission's interpretation of the facts and the ultimately finding of
age discrimination. Therefore, 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. 0120061358 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this request. The agency shall comply with the Order as set forth
below.
ORDER
The agency is ordered to take the following remedial action:
1. If CW-2's appointment remained temporary, the agency shall
offer to appoint complainant to a temporary appointment for at least one
year in the position of Store Worker, WG-05, in the Defense Commissary
Agency. However, if CW-2's appointment became permanent, then the
agency shall offer to appoint complainant to a permanent appointment
in the above-referenced position. Complainant will have fifteen (15)
calendar days to accept or reject the agency's offer in writing.
2. The agency shall provide complainant with the appropriate back
pay, with interest, for the period starting on December 2, 2004 and ending
when CW-2's temporary appointment either ended or became permanent.
If CW-2's appointment became permanent, then back pay shall end either
when complainant refuses the position as prescribed in paragraph 1 of
this Order, or when he begins said position. The back pay shall be
computed in the manner prescribed by 5 C.F.R. � 550.805. The agency
shall determine the appropriate amount of back pay, with interest, and
other benefits due complainant, pursuant to 29 C.F.R. 1614.501, no later
than sixty (60) calendar days after the date this decision becomes final.
Complainant shall cooperate in the agency's efforts to compute the amount
of back pay and benefits due, and shall provide all relevant information
requested by the agency. If there is a dispute regarding the exact
amount of back pay and/or benefits, the agency shall issue a check to
complainant for the undisputed amount within sixty (60) calendar days
of the date the agency determines the amount it believes to be due.
The complainant may petition for enforcement or clarification of the
amount in dispute. The petition for clarification or enforcement must
be filed with the Compliance Officer, at the address reference in the
statement entitled "Implementation of the Commission's Decision."
3. Within 90 days of the date this decision becomes final, the
agency shall train the Store Director and all responsible agency employees
involved in this action on the laws concerning age discrimination under
the ADEA and the agency's duties under that statute to ensure that
similar violations did not occur.
4. The agency shall consider taking disciplinary action against
the Store Director and all other individuals responsible for making
the agency's decision in this matter. If the agency decides to take
disciplinary action, it shall identify in a compliance report the
action taken. If the agency decides not to take disciplinary action,
it shall set forth in its compliance report the reason for its decision
not to impose discipline.
5. The agency shall send evidence that they have complied with the
above provisions of this order to the Compliance Officer as referenced
herein.
POSTING ORDER (G0900)
The agency is ordered to post at its Naval Shipyard Portsmouth Commissary,
Portsmouth, New Hampshire facility copies of the attached notice.
Copies of the notice, after being signed by the agency's duly authorized
representative, shall be posted by the agency within thirty (30) calendar
days of the date this decision becomes final, and shall remain posted
for sixty (60) consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. The agency
shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled "Implementation of the Commission's Decision,"
within ten (10) calendar days of the expiration of the posting period.
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
___6/14/07_______________
Date
2
0520070526
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0520070526