Bharatv.Sheth v. Department of the Army 05990304 July 21, 2000 . Bharat V. Sheth, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJul 21, 2000
05990304 (E.E.O.C. Jul. 21, 2000)

05990304

07-21-2000

Bharat V. Sheth v. Department of the Army 05990304 July 21, 2000 . Bharat V. Sheth, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Bharat V. Sheth v. Department of the Army

05990304

July 21, 2000

.

Bharat V. Sheth,

Complainant,

v.

Louis Caldera,

Secretary,

Department of the Army,

Agency.

Request No. 05990304

Appeal No. 01974658

Agency No. BODVF09510F0230

Hearing No. 110-96-8307X

DENIAL OF REQUEST FOR RECONSIDERATION

The agency initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Bharat

V. Sheth v. Department of the Army, EEOC Appeal No. 01974658 (December

15, 1998).<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)).

In its request, the agency contends that record evidence demonstrates that

the selectees (STs) possessed the requisite supervisory and management

experience prior to their selections for the positions at issue, that the

complainant's supervisory experience was taken into account in ranking

him, and that complainant's qualifications were not so demonstrably

superior to those of the STs as to warrant a finding of pretext.

After a review of the agency'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 prior

decision endorsed the finding of the EEOC Administrative Judge (AJ),

who concluded that the most important criterion for the positions was

management experience and that complainant had by far the most of such

experience, having been temporarily promoted on four separate occasions to

Acting Chief. In contrast, as the complainant pointed out in his response

in opposition to the agency's request, one of the STs admitted having no

supervisory experience prior to selection in 1991 and that both he and

the other ST had been project managers �in name only� from 1989 to 1991.

Moreover, the ranking process, in which complainant was supposedly given

full credit for his managerial experience yet still ranked below the STs,

was used only once, making it highly suspect in the eyes of the AJ and

we find, rightly so.

The decision in EEOC Appeal No. 01974658 therefore 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 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, Acting Director

Office of Federal Operations

July 21, 2000

Date

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.