0520110068
12-23-2010
Taft D. Kelly, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Motor Carriers), Agency.
Taft D. Kelly,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Motor Carriers),
Agency.
Request No. 0520110068
Appeal No. 0120102207
Agency No. 2009-00023-FMCSA-02
DENIAL
Complainant timely requested reconsideration of the decision in Taft
D. Kelly v. Department of Transportation, EEOC Appeal No. 0120102207
(September 9, 2010). 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).
BACKGROUND
In the underlying case, Complainant alleged that the Agency discriminated
against him on the basis of race (African-American), color (black),
and in reprisal for prior protected activity when, in April 2009, the
Agency failed to open for competition a GS-15 Chief of the Enforcement
and Compliance Division/Supervisory Transportation Specialist position
and instead placed an applicant from another vacancy into the position,
which denied Complainant the opportunity to be selected. The Commission
affirmed the Agency's final decision, which found that Complainant
failed to prove that the Agency subjected him to discrimination as
alleged. Specifically, the Commission found that Complainant failed
to establish a prima facie case of discrimination on the bases of race,
color, and reprisal. Regarding the prima facie case of race and color
discrimination, the Commission found that Complainant was not similarly
situated to the selectee and did not provide any evidence to raise an
inference of discrimination. Regarding the prima facie case of reprisal,
the Commission found that Complainant failed to show that the Director of
the Office of Enforcement and Compliance (Director)1 and the Associate
Administrator for Enforcement and Program Delivery (Administrator)
were aware of or involved in his previous EEO activity. In addition,
the Commission found that Complainant failed to show that there was any
nexus between his previous EEO activity and his non-selection.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant, through his attorney,
argued that the appellate decision involved a clearly erroneous
interpretation of material fact or law for three reasons. First,
Complainant argued that the appellate decision erroneously stated that the
Director was the selecting official, when in fact "the ROI makes clear
that he was not the selecting official" and the Administrator "was and
admitted that he was." Complainant contended that this misstatement of
fact creates the impression that the selecting official had no involvement
with his prior EEO activity, when in fact the Administrator was "deeply
involved with the most significant event": Complainant's reassignment
from a previous position only months before the Administrator made the
decision not to post the position at issue. Second, Complainant argued
that, although the appellate decision stated that the Director of the
Office of Human Resources told the Director and the Administrator that
they could fill the same position through the same certificate if the job
titles were the same, the position descriptions were vastly different.
Third, in reference to a selection memorandum dated April 3, 2009 that
justified the selection of the two selectees, Complainant argued:
The very fact that this justification memo does not even refer to [the
selectee for the position at issue] as being recommended at the end
of the memo shows that it was slapped together at the very last minute
and asserted the usual generalties and banalties with regard to all the
efforts expended to make certain that all minorities and candidates of
diverse backgrounds were considered.
In response, the Agency asserted that Complainant failed to demonstrate
that the appellate decision involved a clearly erroneous interpretation
of material fact or law. Regarding Complainant's first argument, the
Agency asserted that there is no record evidence to support Complainant's
claim that the Administrator was the selecting official. In addition, the
Agency asserted that the appellate decision specifically concluded that
the Director and the Administrator had no knowledge of Complainant's prior
EEO activity and Complainant did not cite to record evidence supporting
his contention otherwise. Further, the Agency asserted that the appellate
decision specifically found that Complainant's reassignment was undertaken
by management officials who were not involved in the selection process
at issue. Regarding Complainant's second argument, the Agency asserted
that there is no record evidence to support Complainant's claim that
the position descriptions were vastly different. In addition, the
Agency asserted that, even if the positions descriptions were different,
this was not a material fact because it would not alter the appellate
decision's analysis of whether Complainant established a prima facie case.
Regarding Complainant's third argument, the Agency asserted that it is
deficient for several reasons: (a) it is misleading because there was
nothing "secretive" about the selection process; (b) it is irrelevant
because unconfirmed speculation about the selection memorandum is not a
material fact related to Complainant's burden to establish a prima facie
case; and (c) it is inappropriate for a request for reconsideration
because such speculative statements are not meant to demonstrate a
clearly erroneous interpretation of material fact.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant's request does not establish that
the appellate decision involved a clearly erroneous interpretation
of material fact or law, or that the appellate decision will have
a substantial impact on the policies, practices, or operations of
the Agency. As to Complainant's first argument, we note that the
record reflects the following: (a) the Administrator did not attest
to being the selecting official; (b) the Director attested to making
the selection at issue; and (c) the Certificate of Eligibles contains
the name and signature of the Director as the selecting official.
In addition, although Complainant asserted that this was a "factual
error of major importance" because of the Administrator was involved
with his reassignment, we find that Complainant did not cite to any
record evidence showing that the Administrator knew about his prior
EEO activity at the time of the non-selection. Further, we note that
the appellate decision specifically addressed Complainant's reassignment
argument; it concluded that the reassignment was undertaken by management
officials who were not involved in the selection and that Complainant did
not show that the Administrator knew about his prior EEO activity at the
time of the non-selection. As to Complainant's second argument, we find
that the content of the position descriptions is not a "material" fact
because the appellate decision did not rely on that fact in finding that
Complainant failed to establish a prima facie case. As to Complainant's
third argument, we note that the second page of the selection memorandum
does indeed refer to the recommendation of both selectees. In addition,
we find that this particular argument does not assert that the appellate
decision involved a "clearly erroneous interpretation of material fact
or law."
We remind Complainant that a "request for reconsideration is not a second
appeal to the Commission." Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (MD-110), at Ch. 9 � VI.A. (Nov. 9,
1999). We emphasize that the appellate decision found that Complainant
failed to establish a prima facie case of discrimination on the bases of
race, color, and reprisal. Therefore, Complainant must demonstrate in
his request for reconsideration that the appellate decision clearly erred
in that respect. We find that Complainant's arguments on reconsideration
failed to make such a showing.
CONCLUSION
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. The decision in EEOC Appeal No. 0120102207 remains the
Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
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 (Z0610)
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
_12/23/10_________________
Date
1 The appellate decision referred to the Director as the selecting
official.
??
??
??
??
2
0520110068
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110068