05A20500
06-12-2002
Shaukat Syed, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Shaukat Syed v. Department of Agriculture
05A20500
June 12, 2002
.
Shaukat Syed,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Request No. 05A20500
Appeal No. 01A20187
Agency Nos. 980560; 990070
Hearing No. 100-AO-7679x
DENIAL OF REQUEST FOR RECONSIDERATION
Shaukat Syed (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Shaukat Syed v. Department of Agriculture, EEOC Appeal
No. 01A20187 (February 25, 2002). 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 29 C.F.R. �
1614.405(b).
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).
Complainant alleged that he was discriminated against on the basis of
religion (Muslim) and subjected to retaliation for prior EEO activity
when he was not selected for the position of Program Analyst (HAACP
Implementation Project Manager) in March 1998. Complainant further
alleged that he was discriminated against on the bases of race (Asian
American) and religion and subjected to retaliation when he was not
selected for the position of Program Analysis Officer (Director, Review
Staff) in September 1998. The previous decision affirmed the agency's
adoption of an EEOC Administrative Judge's finding of no discrimination
issued without a hearing. In so doing, the previous decision noted that
the AJ's issuance of a decision without a hearing was appropriate and a
preponderance of the record evidence did not establish that discrimination
occurred.
The AJ determined that although complainant established a prima facie
case of discrimination, he failed to raise a genuine dispute as to
the agency's explanations for his non-selections. Specifically, the
AJ noted that management officials testified with specificity as to the
superior qualifications of the selectees. The AJ determined that although
complainant alleged that he is more qualified than the selectees, he did
not provide examples to support this conclusion, nor did he specifically
rebut management officials' testimony as to the selectees' qualifications.
The AJ concluded that mere conclusory allegations were not sufficient
to raise a genuine issue of material fact.
We note that Commission precedent establishes that a mere recitation
that there is a factual dispute is insufficient to overcome a motion
for summary judgment. The party opposing summary judgment must identity
the disputed facts in the record with specificity. See Patton v. United
States Postal Service, EEOC Request No. 05930055 (July 1, 1993) (summary
judgment proper where complainant made only a general assertion that his
job performance was good, but set forth no specific facts regarding his
performance). Here, the AJ correctly determined that complainant's mere
statement that his qualifications are superior, absent specific examples
to rebut the management officials' testimony concerning the selectees'
superior qualifications, was insufficient to raise a genuine issue of
material fact.
In his request for reconsideration, complainant essentially reiterates
arguments made on appeal which were considered when issuing the
previous decision. He argues, for example, that he was not selected
for 17 positions by the same management official and contends that these
allegations establish a continuing violation that was not addressed by
the AJ. We note, however, that complainant did not raise this argument
in his complaint or before the AJ, although he was given the opportunity
to do so.
After a careful review of the record, including arguments and evidence
not specifically discussed in this decision, we find that complainant
has failed to demonstrate that the previous decision involved a clearly
erroneous interpretation of material fact or law, or that it will have a
substantial impact on the operations, policies or practices of the agency.
Accordingly, it is the decision of the Commission to deny the request.
The decision in EEOC Appeal No. 01A20187 remains the Commission's final
decision. There is no further right of administrative appeal on the
decision of the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 12, 2002
Date