05A30838
08-04-2003
John S. Lambert, Complainant, v. Colin L. Powell, Secretary, Department of State, Agency.
John S. Lambert v. Department of State
05A30838
08-04-03
.
John S. Lambert,
Complainant,
v.
Colin L. Powell,
Secretary,
Department of State,
Agency.
Request No. 05A30838
Appeal No. 01A23325
Agency No. 01-02
DENIAL OF REQUEST FOR RECONSIDERATION
On June 9, 2003, John S. Lambert (complainant) timely initiated a request
to the Equal Employment Opportunity Commission (EEOC or Commission)
to reconsider the decision in John S. Lambert v. Department of State,
EEOC Appeal No. 01A23325 (May 15, 2003). 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).
Complainant filed an EEO complaint claiming that he had been discriminated
against on the basis of disability (chronic fatigue immune disorder
syndrome) when he was not selected for the position of Program Coordinator
at the U.S. Embassy in Namibia. After the complaint was investigated
and complainant was issued the report of investigation, he requested a
final agency decision. The agency issued a decision finding that the
complainant had not been discriminated against.
In its January 28, 2002 decision, the agency found that complainant
had not established a prima facie case on the basis of disability
discrimination because he had not shown that he was a qualified individual
with a disability. However, the agency assumed that he had met his prima
facie case for the purposes of analysis and continued its assessment of
his claim. It found that the agency gave a legitimate, nondiscriminatory
reason for complainant's non-selection, in that an Eligible Family
Member had been selected. Eligible Family Members (EFMs) are relatives
of current Embassy employees. The hiring officials indicated that it was
their belief that if an EFM applied for a position, that person had to be
hired as long as they were qualified to do the work. The FAD concluded
that complainant had not shown the agency's reasons to be pretext
for discrimination, and issued a decision finding no discrimination.
The previous decision, again assuming that complainant was an individual
with a disability, found that the agency's decision should be affirmed.
In his request for reconsideration, complainant argued that the
previous decision did not take into consideration that: (1) there
was an unreasonable delay with regard to his being notified of his
non-selection, which resulted in witnesses moving to other locations;
(2) the individual who made the hiring decision was never contacted
for a sworn statement; (3) the members of the hiring committee were not
informed that he was a disabled former employee and therefore did not
take this into consideration; and (4) the agency violated its policies
by automatically giving the position to an EFM.
Complainant's RTR should be denied. He has not satisfied the criteria
for reconsideration set forth in 29 C.F.R. � 1614.405(b). We also
find no justification for reconsidering the previous decision on our
own motion. With regard to complainant's first and second contentions,
we note that he was given the opportunity to have his complaint heard by
an EEOC Administrative Judge, but he chose not to exercise this right.
If he had requested a hearing, he could have conducted appropriate
discovery in support of his claim and presented witness testimony at
the hearing. With regard to complainant's remaining contentions, we
note that although the members of the hiring committee at the Embassy
were mistaken in their belief that the EFM program required them to
hire EFMs without considering other candidates, there is no evidence
that disability discrimination played a role here.
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. 01A23325 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
____08-04-03______________
Date