0120082736
07-08-2009
Alfredo F. Fernandez, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Alfredo F. Fernandez,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120082736
Agency No. 06-55630-01589
DECISION
Complainant filed an appeal with this Commission concerning his
complaint of unlawful employment discrimination. Complainant alleged
discrimination based on sex (male), age (over 40), and in reprisal for
prior EEO activity when on April 11, 2006, he was not selected for the
position of Supply System Analyst, GS-2003-09/11, under Certificate
SW6-GS-2003-09-P5279583-RDL. After completion of the investigation of
the complaint, complainant did not request a hearing. The agency then
issued its May 7, 2008 decision concluding that it asserted legitimate,
nondiscriminatory reasons for its action, which complainant failed to
rebut.
Initially, we note that complainant also alleged that in November 2004,
he was not afforded the opportunity to attend "Air Speed" training.
Upon review, we find that the agency properly dismissed this claim due to
untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2).
After a review of the record, we find that complainant should have
reasonably suspected discrimination at the time of alleged incident
in November 2004, but he did not contact an EEO Counselor until May
18, 2006, which was beyond the 45-day limitation period. On appeal,
complainant presents no persuasive arguments or evidence warranting an
extension of the time limit for initiating EEO Counselor contact with
regard to this claim.
With regard to the alleged nonselection, we find that the agency
articulated legitimate, nondiscriminatory reasons for its selection
decision. The Selecting Official (SO) stated that complainant's
knowledge, skills, and abilities were inferior to the selectee.
Specifically, the SO asserted that the selectee had a strong resume
indicating Air Speed training, strong work ethics, taking initiative,
self-starters and being able to work independently. The SO also stated
that complainant lacked the foregoing factors and he had difficulty with
self-expression and avoided volunteering to work on new programs.
The Commission finds that complainant failed to rebut the agency's
articulated legitimate, nondiscriminatory reasons for the selection
decision. Furthermore, complainant failed to show that his qualifications
for the Supply System Analysis position at issue were plainly superior to
the selectee's qualifications, or that the agency's action was motivated
by any discrimination.
Accordingly, the agency's decision dismissing the November 2004 incident
and finding no discrimination concerning the alleged nonselection is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (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
July 8, 2009
__________________
Date
2
0120082736
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120082736