0520110473
11-03-2011
Arthur Chan, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Arthur Chan,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Request No. 0520110473
Appeal No. 0120080877
Hearing No. 550-2006-00126X
Agency No. 9C1S05007
DENIAL
Complainant timely requested reconsideration of the decision in Arthur
Chan v. Department of the Air Force, EEOC Appeal No. 0120080877 (March
31, 2011). 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).
The previous decision affirmed the Agency’s implementation of the
decision by an EEOC Administrative Judge (AJ), issued without a hearing.
The AJ found that Complainant was not discriminated against based on his
race and national origin when he allegedly was subjected to a hostile work
environment and disparate treatment regarding his performance appraisal,
his proposal to admonish a subordinate employee, his selection of a
candidate for a position, and the expectations regarding his performance,
among other things. The previous decision found that Complainant had
not shown that he had been subjected to verbal or physical harassment
which was related to his race or national origin, or that any of the
complained of harassment was based on his race or national origin.
We further found that Complainant had not established the existence of
similarly-situated employees not of his protected classes being treated
more favorably, or that there was evidence pointing to Complainant’s
race or national origin as the basis for the alleged disparate treatment.
The decision concluded that Complainant had not shown the Agency’s
reasons for its actions to be pretext for discrimination.
In his request for reconsideration, Complainant argued that the
previous decision contained a clearly erroneous interpretation of
fact and law, in that it improperly assumed that the Agency’s
interpretation of certain material facts was correct, as opposed to
Complainant’s factual assertions, and that it ignored Complainant’s
evidence regarding comparators. Complainant also argued that the AJ made
improper procedural findings which the previous decision did not correct.
Complainant urged the Commission to reverse the AJ’s decision and remand
the complaint to an AJ for a hearing at which testimony would be heard,
and credibility findings made.
The Agency submitted a brief in opposition to Complainant’s request
for reconsideration. The Agency argued that the Commission properly
applied the standards for reviewing a decision issued without a hearing,
in that the previous decision explicitly stated that it was assuming
Complainant’s version of the facts to be true, and that it reviewed the
AJ’s decision de novo. The Agency also argued that the Commission drew
the correct legal conclusions as to Complainant’s claims of harassment
and disparate treatment from Complainant’s version of the facts, finding
that he had not established that he had been discriminated against.
We find that Complainant’s request for reconsideration fails to show
that our previous decision involved a clearly erroneous interpretation of
fact or law, or that it would have a substantial impact on the policies,
practices or operations of the Agency. We cannot say that the previous
decision erred with respect to its findings. It assumed Complainant’s
version of the facts to be true and found that he had not shown that
a material fact was in controversy which would require testimony and
credibility findings.
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. 0120080877 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
November 3, 2011
Date
2
0-20110473
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110473