0520090127
02-27-2009
David L. Lang, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
David L. Lang,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Request No. 0520090127
Appeal No. 0120072121
Hearing No. 450200700098X
Agency No. 062215
DENIAL
Complainant timely requested reconsideration of the decision in David
L. Lang v. Department of the Treasury, EEOC Appeal No. 0120072121
(September 29, 2008). 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 prior appellate decision addressed three issues raised by complainant
in his formal complaint alleging employment discrimination on the bases
of race (African-American), sex (male), and in reprisal for prior EEO
activity.1 Specifically, complainant alleged he was discriminated
against on the bases of race, sex, and reprisal when:
1. the vacancy announcement for the position of Security Officer, GS-14,
was cancelled;
2. on November 8, 2005, he was rated "achieved standards" in element 4
of his performance evaluation; and
3. on or around November 8, 2005, his supervisor refused to sign his
Individual Development Plan.
In his request, complainant argues that the prior decision erred when
it found that the selectee for the position noted in issue 1 above was
a GS-14, when the record reveals he was a GS-13. Complainant further
asserts that the agency failed to conduct an appropriate investigation,
and that the AJ erred in denying him certain documents during discovery.
In response, the agency contends that complainant's request should be
denied.
The prior decision found there was substantial evidence in the record to
support the agency's reasons for its actions. Specifically, the record
reveals the selectee was chosen for assignment to the Security Officer
position because he had worked in the position in the past, and was
highly qualified for the position. Accordingly, the vacancy announcement
was cancelled. At the time of the selection and the cancellation of
the vacancy announcement, complainant had recently been downgraded to
the GS-12 level because of a misconduct incident.2 The officials who
cancelled the vacancy announcement at issue averred that they did not
consider complainant a viable candidate because of his inappropriate
conduct.
The prior decision also found that complainant received an "achieved
standards" rating for element 4 on his performance appraisal because he
failed to timely complete projects. The record reveals complainant's
supervisor averred that complainant failed to complete a briefing for
procedures relating to suspicious mail. Complainant submitted evidence
which he argues suggests that he did complete the assignment but his
supervisor neglected to open the e-mail which contained his work product.
The AJ found that complainant failed to produce sufficient evidence of a
retaliatory motive, or other evidence of pretext. We discern no clearly
erroneous interpretation of fact in that finding.
Finally, complainant alleged that his supervisor failed to immediately
sign his Individual Development Plan. The AJ found no evidence
of pretext. Complainant failed to explain why this finding was
clearly erroneous. Instead, complainant argues that the AJ made certain
decisions during discovery which denied him the ability to prove pretext.
After a careful review of the entire record, we find support for the
AJ's determination that complainant's evidence relating to the agency's
alleged failure to discipline similarly situated individuals was not
relevant to the instant case. Accordingly, we find that has complainant
failed to establish that the AJ's decision on the discovery matter was
clearly erroneous.
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. Accordingly, the decision in EEOC Appeal No. 0120072121
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 (P0408)
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 (Z1008)
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
February 27, 2009
Date
1 In his original formal complaint, complainant raised several other
issues, which were dismissed by an Administrative Judge (AJ) in a decision
issued on or about March 13, 2007. In his request for reconsideration,
complainant did not make any specific arguments regarding these issues.
Accordingly, they will not be addressed herein.
2 This matter has been adjudicated by the Merit Systems Protection
Board, EEOC, and the Federal Courts. See Lang v. Department of the
Treasury� EEOC Petition No. 03A60020 (January 10, 2006); Lang v. Snow,
No. 4:06-CV-120-A, 2007 WL 316872 (N.D.Tex.), 89 Empl. Prac. Dec. P 42,721
(February 1, 2007); aff'd 260 Fed.Appx. 668 (December 21, 2007).
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0520090127
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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