0120063214
05-07-2007
Richard Gong, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Richard Gong,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01200632141
Agency No. 9P0J04041F06
Hearing No. 360-2005-00231X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 3, 2006 final order 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. The appeal is subject to our de
novo review under 29 C.F.R. � 1614.405(a). Complainant alleged that
the agency discriminated against him on the bases of race (Asian) and
national origin (Chinese) when, on May 20, 2004, he became aware that
a Caucasian was selected for the position of Special Agent (GS-1811)
at Randolph Air Force Base in Texas.
After receiving the report of investigation, complainant timely
requested a hearing before an EEOC Administrative Judge (AJ). The
agency subsequently motioned the AJ for a decision without a hearing.
Complainant opposed the motion, but on February 14, 20062, the AJ issued
a decision without a hearing, concluding that there were no material
facts in dispute and that the agency was entitled to judgment as a
matter of law. Having reviewed the record, we find no error in the
AJ's conclusions.
Complainant failed to prove that the agency's reasons for the
non-selection were pretextual. The evidence on the record supports the
agency's position that complainant simply was not the best qualified
candidate. See Report of Investigation at 69, 94, 121, 142, 161, 188,
and 127. In fact, complainant does not argue that his qualifications were
superior to those of the selectee. His only argument that discrimination
occurred is his contention that there are too few Criminal Investigators
with the agency of Chinese descent, and that the agency makes no attempt
to hire Asians other than Koreans. One of complainant's primary arguments
is that the agency gives people of Korean national origin preferential
treatment. These bare assertions without any other supporting evidence
that raises even an inference of wrongdoing are insufficient to prove
his disparate treatment claim.
Therefore, 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 order, because the Administrative Judge's issuance of a decision
without a hearing was appropriate and a preponderance of the record
evidence does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (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
May 7, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 On January 31, 2006, the AJ issued a decision on the merits of this
case, but the AJ replaced and superseded that prior decision with the
decision the AJ issued on February 14, 2006.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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