05A20754
08-08-2002
Ulysses Farley, III, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Ulysses Farley, III v. Department of the Navy
05A20754
August 8, 2002
.
Ulysses Farley, III,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Request No. 05A20754
Appeal No. 01A20615
Agency No. 9863126001
DENIAL OF REQUEST FOR RECONSIDERATION
Ulysses Farley, III (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in Ulysses Farley, III v. Department of the Navy, EEOC
Appeal No. 01A20615 (April 19, 2002). 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).
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).
Complainant alleged that he was discriminated against on the bases of
race/color (Black) and age (60 at the relevant time) and subjected to
retaliation for prior EEO activity (unspecified) when his team leader
wrote a memorandum to his supervisor regarding complainant's performance.
The previous decision affirmed the agency's finding that complainant
failed to prove by a preponderance of the evidence that he was subjected
to discrimination or retaliation.
Even assuming complainant established a prima facie case of discrimination
and/or retaliation, he did not prove that, more likely than not, the
agency's explanation for its action was a pretext. The team leader (CW1)
testified that he was teamed with complainant for a project and, as team
leader, was responsible for reporting any difficulties he encountered to
the supervisor (S1). He therefore informed S1 of the problems he was
having working with complainant, including complainant's inability to
take instruction, general defensiveness, and unreliability. S1 testified
that he always told his team leaders to inform him in writing of any
difficulties they experienced with logistics, equipment and personnel
and that CW1's memo was not out of the ordinary. Other co-workers
working on the same project corroborated CW1's testimony concerning
complainant's work habits. Although complainant argued that CW1, S1 and
the other co-workers worked together in issuing the memo and in previous
actions taken against him due to his race, age and prior EEO activity,
he failed to provide sufficient evidence to prove that discrimination,
rather than his work habits, motivated the action at issue.
In his request for reconsideration, complainant's sole argument is
that new evidence warrants a finding in his favor. This new evidence
consists of a deposition taken during the investigation of an unrelated
EEO complaint not involving complainant. It is offered in support of
complainant's claim that the investigation into his complaint was unfair
and involves a discussion of how the EEO process at the agency works.
This deposition suggests that the EEO process in place at the time
of the subject investigation did not comply with the Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EE0-MD-110),
as revised, November 9, 1999, in a number of ways.
We first note that as of November 9, 1999, when the applicable regulations
were revised, requests for reconsideration are no longer granted on the
basis of new evidence. As detailed above, requests for reconsideration
are only granted where the party requesting reconsideration has
established that the appellate decision involves a clearly erroneous
interpretation of material fact or law, or will have a substantial impact
on the policies, practices, or operations of the agency. Complainant does
not do so in this case.
Even assuming that the EEO process at the agency did not comply
with various requirements detailed in MD-110, complainant provides
no description of what evidence might have been produced had the
investigation been conducted according to MD-110's provisions, nor does he
indicate how this evidence would have assisted him in proving his case.
A review of the record establishes that the relevant individuals were
interviewed, including the alleged responsible officials, CW1 and S1,
and the other co-workers assigned to the project discussed in CW1's memo.
Complainant does not allege that the investigator failed to ask the
relevant questions or asked inappropriate questions, but instead relies
solely on a management official's testimony concerning the agency's EEO
process in general. In sum, complainant failed to establish how the
alleged improper processing of his complaint affected the outcome of
his case.
Accordingly, we find that complainant's request for reconsideration
fails to meet the criteria of 29 C.F.R. � 1614.405(b). The decision
in EEOC Appeal No. 01A20615 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
August 8, 2002
Date