Eladio Mora, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionDec 8, 2000
05a00895 (E.E.O.C. Dec. 8, 2000)

05a00895

12-08-2000

Eladio Mora, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Eladio Mora v. Department of the Air Force

05A00895

December 8, 2000

.

Eladio Mora,

Complainant,

v.

F. Whitten Peters,

Acting Secretary,

Department of the Air Force,

Agency.

Request No. 05A00895

Appeal No. 01993492

Agency No. SAN-96-AF055E

Hearing No. 360-97-8389X

DENIAL OF REQUEST FOR RECONSIDERATION

Complainant initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Eladio

Mora v. Department of the Airforce, EEOC Appeal No. 01993492 (May

23, 2000).<1> 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).

Complainant filed a complaint alleging discrimination on the bases of

his national origin (Hispanic) and sex (male) when, on August 24, 1995,

he was non-selected for an Inspection and Receiving Supervisor position,

WS-6901-07. The appellate decision affirmed the administrative judge's

(AJ) decision in finding no discrimination.

In his request for reconsideration, complainant argues that the AJ

erred in failing to conduct a hearing. In addition, complainant argues

that the record shows �striking discrepancies� that �demonstrate the

need for credibility determinations.� Specifically, complainant notes

that he had more �supply� experience than the selectee. In addition,

complainant notes that supervisory experience was not a prerequisite in

the position description for the position at issue. Complainant also

claims that the selecting official held a bias against him because of

his rumored sexual orientation.

The record shows the following undisputed facts from the record: The

position description for the position at issue (Inspection and Receiving

Supervisor) was skill coded 60% MKD (General Equipment Examiner) and 40%

MK3WA (Material Handling/Warehousing - Forklift Operator). In addition,

it was undisputed that the selecting official was looking for someone with

supervisory skills in addition to experience in inspection and receiving.

The experience of complainant and the three selectees were as follows:

Candidate MKD MK3WA Supervisory Appraisal Rating

Complainant None 99 months None Fully Successful

Selectee 1 49 months 24 months 165 months Excellent

Selectee 2 None 20 months 239 months Superior

Selectee 3 3 months 69 months 9 months Excellent

The record does not indicate that complainant was significantly more

qualified than the selectees. In addition, complainant failed to profer

any corroborating evidence of his allegation of sexual orientation

bias which was highly disputed by the selectee. Nevertheless, sexual

orientation bias is not within the current purview of the laws enforced

by the Commission. We find the AJ's decision based upon the undisputed

record supported by substantial evidence.

Moreover, after a review of the 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), and

it is the decision of the Commission to deny the request. The decision

in EEOC Appeal No. 01993492 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

December 8, 2000

__________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.