Duwan L. Lang, Complainant,v.Gordon R. England, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionApr 8, 2004
01A41214 (E.E.O.C. Apr. 8, 2004)

01A41214

04-08-2004

Duwan L. Lang, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.


Duwan L. Lang v. Department of the Navy

01A41214

April 8, 2004

.

Duwan L. Lang,

Complainant,

v.

Gordon R. England,

Secretary,

Department of the Navy,

Agency.

Appeal No. 01A41214

Agency No. 02-00391-003

Hearing No. 170-A3-8217X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's final order in the above-entitled matter.

Complainant alleged that the agency discriminated against her on the

bases of race (African-American) and sex (female), in violation of Title

VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �

2000e et seq., when:

Complainant was not selected for the position of Logistics

Management Specialist, GS-346-5/11, pursuant to Vacancy Announcement

No. PHL-01-0012; and,

Complainant was not selected for the position of Logistics

Management Specialist GS-346-7/11, pursuant to Vacancy Announcement

No. PHL-01-0012.<1>

The EEOC Administrative Judge (AJ) issued a decision without a

hearing on claim 1, but conducted a hearing on claim 2.<2> After

a review of the record in its entirety, including consideration of

all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the final agency order

with respect to claim 1, because we find that the AJ's issuance of a

decision without a hearing was appropriate, see Petty v. Department of

Defense, EEOC Appeal No. 01A24206 (July 11, 2003), and a preponderance

of the record evidence does not establish that discrimination occurred.

With respect to claim 2, we also find that the AJ's ultimate finding,

that unlawful employment discrimination was not proven by a preponderance

of the evidence, is supported by the record.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish 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.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

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. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

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

April 8, 2004

__________________

Date

1Both positions were announced pursuant to

the same Vacancy Announcement, but different Selection Advisory Panels

were established for the positions at different grade levels.

2The AJ denied the agency's motion for a decision without a hearing for

claim 2, and conducted a hearing on that claim because she found that

the agency's investigation did not include the ratings and evaluations

of the panel members for the GS-7 position.