Ramchandra S. Singh, Complainant,v.Pete Geren, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJan 23, 2009
0120073402 (E.E.O.C. Jan. 23, 2009)

0120073402

01-23-2009

Ramchandra S. Singh, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.


Ramchandra S. Singh,

Complainant,

v.

Pete Geren,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120073402

Agency No. ARCESAC05DEC12546

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts for de novo

review, complainant's appeal from the agency's March 7, 2007 final

decision concerning his equal employment opportunity (EEO) complaint

alleging employment discrimination in violation of Title VII of the Civil

Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.1

Complainant, employed by the agency as a Technical Lead, GS-0810-12, in

Civil Design, filed a formal complaint in which he alleged that the agency

discriminated against him on the bases of race (Asian-Indian) and color

(brown)2 when, on November 29, 2005, he learned that he was non-selected

for the position of Lead Civil Engineer, GS-0810-13, a temporary promotion

in the Dam Safety and Infrastructure Support Section, Geotechnical Branch,

Engineering Division, Sacramento District of the Corps of Engineers.

In its March 7, 2007 final decision, the agency found that complainant

failed to establish that he was subjected to unlawful discrimination.

The agency found that the members of the selection panel for the position

in question articulated legitimate, nondiscriminatory reasons for not

selecting complainant for an interview. Specifically, the agency found

that panel members asserted that complainant's resume was lacking in

technical detail and that the candidates selected for interviews provided

substantial detail regarding their responsibilities on recent projects.

Complainant has raised no new arguments on appeal but presumably asks the

Commission to reverse the FAD's finding of no discrimination. In reply,

the agency asks the Commission to affirm the FAD. We note that we do

not have the benefit of an AJ's findings after a hearing and therefore,

we can only evaluate the facts based on the weight of the evidence

presented to us.

The agency has broad discretion to set policies and carry out personnel

decisions, and should not be second-guessed by the reviewing authority

absent evidence of unlawful motivation. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Department of the

Treasury, EEOC Request No. 05940906 (January 16, 1997). Complainant may

be able to establish pretext with a showing that his qualifications were

plainly superior to those of the selectee. Wasser v. Department of Labor,

EEOC Request No. 05940058 (November 2, 1995); Bauer v. Bailar, 647 F.2d

1037, 1048 (10th Cir. 1981). Here, complainant has failed to make this

showing. Complainant has also failed to present any other persuasive

evidence that the selection decision was tainted by management's intent to

discriminate against him because of his membership in a protected group.

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 agency's final decision

because the preponderance of the evidence of record does not establish

that discrimination on the alleged bases has occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0408)

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 77960,

Washington, D.C. 20013. 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 (S0408)

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 (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

January 23, 2009

__________________

Date

1 We note that although the Notice of Appeal is dated March 29, 2007 and

apparently received by the agency on April 3, 2007, it was not received by

this Commission until July 27, 2007. Since the FAD was issued on March 7,

2007 (and complainant indicates that he received the decision on March 15,

2007), it appears that the appeal was not timely filed. Appeals must

be filed with the Commission within 30 days of receipt of the agency's

final action, pursuant to 29 C.F.R. � 1614.402. The record indicates

that complainant was properly notified by the agency of this deadline.

Nevertheless, as the agency has not argued that the appeal was untimely

filed, the Commission exercises its discretion to accept complainant's

appeal.

2 Complainant initially also alleged discrimination based on religion,

national origin and age, however, he subsequently withdrew these bases.

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0120073402

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 77960

Washington, D.C. 20013

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0120073402