Levance Levingston, Complainant,v.Timothy F. Geithner, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionAug 27, 2009
0520090515 (E.E.O.C. Aug. 27, 2009)

0520090515

08-27-2009

Levance Levingston, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.


Levance Levingston,

Complainant,

v.

Timothy F. Geithner,

Secretary,

Department of the Treasury,

Agency.

Request No. 0520090515

Appeal No. 0120091224

Hearing No. 450200800166X

Agency No. BEP070694F

DENIAL

The agency timely requested reconsideration of the decision in Levance

Levingston v. Department of the Treasury, EEOC Appeal No. 0120091224

(May 14, 2009). 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 agency requests reconsideration on the Commission's previous decision

arguing that it involved a clearly erroneous interpretation of material

fact and law. The agency argued that the decision improperly remanded

the matter back to an EEOC Administrative Judge (AJ) for a hearing.

The agency asserted that complainant failed to establish that the agency's

reasons were pretext. As such, remand of the matter for a hearing was

not necessary.

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. We note that the Commission is not persuaded by the agency's

arguments. We find that the previous decision properly indicated that

there were facts in dispute related to the ranking of complainant and

the Selectee. Further, the decision found that that there were proffered

pretext arguments which were not addressed by the AJ. As such, we find

that the agency has not shown that the Commission's previous decision

involved a clearly erroneous interpretation of material fact or law.

Therefore, the decision in EEOC Appeal No. 0120091224 remains the

Commission's decision. There is no further right of administrative

appeal on the decision of the Commission on this request. The agency

shall comply with the Order as set forth below.

ORDER

The agency shall submit to the Hearings Unit of the EEOC ' s Dallas

District Office the request for a hearing, as well as the complaint

file, within thirty (30) calendar days of the date this decision

becomes final. The agency shall provide written notification to the

Compliance Officer at the address set forth below that the complaint

file has been transmitted to the Hearings Unit of the Dallas District

Office. Thereafter, the Administrative Judge shall issue a decision on

the complaint in accordance with 29 C.F.R. � 1614.109, and the agency

shall issue a final action in accordance with 29 C.F.R. � 1614.110.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report shall

be submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 77960, Washington,

DC 20013. The agency's report must contain supporting documentation,

and the agency must send a copy of all submissions to the complainant.

If the agency does not comply with the Commission's order, the complainant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The complainant also has the right to file a civil action

to enforce compliance with the Commission's order prior to or following

an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,

1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant

has the right to file a civil action on the underlying complaint in

accordance with the paragraph below entitled "Right to File A Civil

Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for

enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

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

August 27, 2009

__________________

Date

2

0520090515

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0520090515