05990304
07-21-2000
Bharat V. Sheth v. Department of the Army 05990304 July 21, 2000 . Bharat V. Sheth, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Bharat V. Sheth v. Department of the Army
05990304
July 21, 2000
.
Bharat V. Sheth,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Request No. 05990304
Appeal No. 01974658
Agency No. BODVF09510F0230
Hearing No. 110-96-8307X
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Bharat
V. Sheth v. Department of the Army, EEOC Appeal No. 01974658 (December
15, 1998).<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)).
In its request, the agency contends that record evidence demonstrates that
the selectees (STs) possessed the requisite supervisory and management
experience prior to their selections for the positions at issue, that the
complainant's supervisory experience was taken into account in ranking
him, and that complainant's qualifications were not so demonstrably
superior to those of the STs as to warrant a finding of pretext.
After a review of the agency'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 prior
decision endorsed the finding of the EEOC Administrative Judge (AJ),
who concluded that the most important criterion for the positions was
management experience and that complainant had by far the most of such
experience, having been temporarily promoted on four separate occasions to
Acting Chief. In contrast, as the complainant pointed out in his response
in opposition to the agency's request, one of the STs admitted having no
supervisory experience prior to selection in 1991 and that both he and
the other ST had been project managers �in name only� from 1989 to 1991.
Moreover, the ranking process, in which complainant was supposedly given
full credit for his managerial experience yet still ranked below the STs,
was used only once, making it highly suspect in the eyes of the AJ and
we find, rightly so.
The decision in EEOC Appeal No. 01974658 therefore 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.
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:
______________________________
Carlton M. Hadden, Acting Director
Office of Federal Operations
July 21, 2000
Date
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.