Johnny Wiley, Complainant, F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMay 16, 2000
05a00424 (E.E.O.C. May. 16, 2000)

05a00424

05-16-2000

Johnny Wiley, Complainant, F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Johnny Wiley v. Department of the Air Force

05A00424

May 16, 2000

Johnny Wiley, )

Complainant, ) Request No. 05A00424

) Appeal No. 01974171

) Agency No. T0466TXF0796R

)

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

____________________________________)

DENIAL OF REQUEST FOR RECONSIDERATION

Complainant initiated a request to the Equal Employment Opportunity

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

Wiley v. Air Force, EEOC Appeal No. 01974171 (February 7, 2000).<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)).

Complainant filed a formal complaint on May 15, 1996, in which he alleged

that he was discriminated against on the basis of race (African-American)

when, on March 7, 1996, he received a Management Directive Reassignment

(MDR) from the GS-11 position of Supervisory Engineering Technician to

the GS-11 position of Engineering Technician. The agency accepted the

complaint for processing and, at the conclusion of its investigation,

issued a finding of no discrimination. Our previous decision affirmed.

This request to reconsider followed.

Regarding the agency's legitimate, nondiscriminatory reason, our previous

decision found that although there was no documentation concerning

complainant's alleged communication deficiencies, there was witness

testimony which indicated that complainant had a problem communicating

effectively. The previous decision also recognized the two incidents

relied upon by the agency regarding complainant's poor supervisory

judgment for which he was required to attend training.

In his request to reconsider, complainant argues that the previous

decision contained clearly erroneous interpretations of facts and law.

Generally, he disputes the contention that he exercised poor supervisory

judgment, denies that a union grievance was filed against him, and notes

that he was originally an Electronics Technician, not an Engineering

Technician. Regarding the misinterpretation of law, complainant

argues that because he showed that one reason for his reassignment was

not supported by the record, then he should have prevailed based on his

prima facie case. We disagree. Merely setting forth a prima facie case

is not enough to prove discrimination. Rather, a complainant must also

show that the agency's articulated legitimate, nondiscriminatory reason

was a pretext for discrimination. See St. Mary's Honor Center v. Hicks,

509 U.S. 502 (1993) (holding that the trier's of fact rejection of

an employer's articulated reasons for its actions does not entitle a

plaintiff to judgment as a matter of law). Complainant failed to show

that the agency's actions were motivated by a discriminatory animus.

Complainant also argues that since the previous decision was issued, new

information (i.e., that the alleged discriminating official was physically

involved with the WFT, the employee that was the subject of complainant's

alleged poor supervisory judgment) has come to his attention. This new

information, however, is immaterial and does nothing to strengthen his

discrimination claim.

Therefore, after a review of complainant'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 decision

in EEOC Appeal No. 01974171 remains final. 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:

May 16, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.