0120081227
04-23-2010
Donald J. Campbell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Donald J. Campbell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120081227
Agency No. 6L-000-0012-07
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. In his complainant, complainant,
a full-time Material Management Specialist, alleged discrimination on the
bases of race (Caucasian), sex (male), color (white), and age (62) when:
1. On May 9, 2007, complainant claimed an unspecified incident occurred.
2. On June 13, 2007, complainant was made aware that he was not the
successful candidate for the Manager of Material Service Center position,
Vacancy No. 14230.
On August 31, 2007, the agency issued a decision dismissing claim
1 pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor
Contact. Additionally, the agency issued a final decision on December 18,
2007, finding no discrimination as to claim 2. Thereafter, complainant
filed the instant appeal.
Claim 1
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the
Commission. See 29 C.F.R. � 1614.105(a)(2).
The Commission finds that the agency properly dismissed claim 1 for
untimely EEO Counselor Contact. Significantly, complainant did not
state exactly what occurred on May 9, 2007. Additionally, complainant
did not initiate contact with an EEO Counselor until July 5, 2007,
which is beyond the 45-day limitation period. Moreover, on appeal,
complainant has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact.
Claims 2
We find that the agency articulated a legitimate, nondiscriminatory
reason for not selecting complainant for the Manager of Material Service
Center position, Vacancy No. 14230. The Manager of the Material Service
Center (Manager), the selecting official, stated that she has known
complainant since January 2004. The Manager stated that there were four
(4) applicants for the vacancy and that she interviewed all applicants,
including complainant. The Manager said that that Team Leader of the
Material Service Center (Team Leader) participated in the four interviews.
The Manager claimed that she considered the qualifications requirements,
candidate applications and their relative interview strength when
making her selection on who best met the qualification requirements
for the vacancy. The Manager asserted that she selected the selectee
for the vacancy due to his managerial experience, understanding of
cross-organizational and strategic issues, and specific experience in
a similar environment. The Manager articulated that complainant, while
having an excellent specialized experience and tactical knowledge, did not
demonstrate superior managerial and interpersonal relationship abilities.
The Team Leader said that he sat in with the Manager for the interviews
of the four applicants. The Team Leader stated that he did not review the
applicants' Forms 991 and ranked complainant as having the best interview.
The Team Leader asserted that applicant D, applicant B (the selectee) and
applicant C were ranked by him as second, third and fourth respectively.
The Team Leader stated that the Manager did not tell him who she was
going to select and thanked him for his assistance during the interview.
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 Manager
of Material Service Center position were plainly superior to the
selectee's qualifications or that the agency's action was motivated
by discrimination. Complainant failed to show, by a preponderance of
the evidence, that he was discriminated against on the bases of race,
sex, color or age.
The agency's decision dismissing claim 1 and finding no discrimination
as to claim 2 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
April 23, 2010
__________________
Date
2
0120081227
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013