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