0520120468
11-21-2012
Harvey C. Yong, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Harvey C. Yong,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Request No. 0520120468
Appeal No. 0120120956
Agency No. IRS-11-0282-F
DENIAL
Complainant timely requested reconsideration of the decision in Harvey C. Yong v. Department of the Treasury, EEOC Appeal No. 0120120956 (May 11, 2012). 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).
ISSUE PRESENTED
The issue presented is whether Complainant met the criteria for reconsideration by demonstrating that the appellate decision: (1) involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency.
BACKGROUND
In the underlying case, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (Asian) when, effective January 4, 2011, he was terminated during his probationary period.
The appellate decision affirmed the Agency's final decision, which found that Complainant failed to prove that he was subjected to race discrimination as alleged. Specifically, the appellate decision found that the Agency articulated legitimate, nondiscriminatory reasons for its actions; namely, it terminated Complainant for his failure to demonstrate acceptable performance and conduct. The appellate decision cited testimony from various employees, including Complainant's First Level Supervisor (S1), Second Level Supervisor, On-the-Job Training Trainer, and On-the-Job Training Coordinator, about Complainant's work performance. Moreover, the appellate decision found that Complainant failed to produce evidence, either during the EEO investigation or on appeal, that the articulated reasons were a pretext for unlawful discrimination.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant contended that the appellate decision erred in finding no discrimination. First, Complainant argued that the record was not adequately developed. Specifically, Complainant asserted that the Commission failed to comply with his earlier request to remand the case back to the Agency for further investigation. In addition, Complainant asserted that the Commission failed to conduct an independent investigation of the facts. Second, Complainant argued that S1 intentionally overloaded him with work in order to impair his performance in completing his remaining 720-TO hard case files. Specifically, Complainant asserted that S1 assigned him eight "515" terminal inspections between November 29, 2010 and December 27, 2010, when such assignments were customarily spread out over a three-month period.
The Agency did not submit a brief or statement in opposition to Complainant's request.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant's request for reconsideration does not demonstrate 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. Specifically, Complainant has not shown that the appellate decision clearly erred in finding no race discrimination.
Regarding the adequacy of the record, we find that the appellate decision did not clearly err in issuing a decision based on the complaint file submitted by the Agency. While the Commission retains the right to supplement the record on appeal, it is intended that this right will be exercised only in rare instances to avoid a miscarriage of justice. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Ch. 9, � V.C. (Nov. 9, 1999) (EEO MD-110). In his request for reconsideration, Complaint has not shown how the record was incomplete or why his situation is one of those "rare instances." We note that a hearing provides the parties with a fair and reasonable opportunity to explain and supplement the record, yet Complainant chose not to request one before an EEOC Administrative Judge.
See EEO MD-110, at Ch. 7, � I.
Regarding the Agency's reasons for the termination, we find that the appellate decision did not clearly err in finding that Complainant failed to establish pretext. Management officials, as stated in the termination letter and in their affidavit testimony, found that Complainant failed to demonstrate acceptable performance in several Critical Job Elements of the position. Specifically, management officials cited the following reasons: (1) in October 2010, Complainant's on-the-job training period was extended due to problems he encountered in Phase II, 720-TO training; (2) on November 29, 2010, Complainant refused to accept S1's reasoning on a technical issue and failed to follow the instructions provided in an Agency publication; and (3) on or about December 16, 2010, Complainant failed to effectively communicate with the customer during Blitz inspections. In his request for reconsideration, Complainant has not shown how any "515" terminal inspections assigned to him between November 29, 2010 and December 27, 2010 are related to the three reasons the Agency provided for his termination. We note that two of the three reasons cited by the Agency occurred before, or on the first day of, the one-month period in which Complainant claimed S1 intentionally overloaded him with work. Moreover, Complainant has not shown that the assignment of the "515" terminal inspections was based on his race.
We emphasize that "[t]he burden is on the requesting party to make a substantial showing that its request meets one of the two prerequisites for a granting of reconsideration." EEO MD-110, at Ch. 9, � VII.B.2. We find that Complainant has not met that burden here.
CONCLUSION
After reviewing 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. 0120120956 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
_____11/21/12_____________
Date
2
0520120468
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120468