01990601
04-26-2000
Fred L. Tilman, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Fred L. Tilman v. Department of Justice
01990601
April 26, 2000
Fred L. Tilman, )
Complainant, )
) Appeal No. 01990601
v. )
) Agency No. I-96-7039
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
______________________________)
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> Complainant alleged
that he was discriminated against on the bases of race (Black), sex
(male), and age (54), when the agency did not select him for the position
of Asylum Officer, GS-11, in 1995. The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
The record reveals that during the relevant time, complainant was
employed as a Federal Police Officer, GS-6, at the agency's Federal
Protective Service in Los Angeles, California. Believing he was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on May 28, 1996. At the conclusion of the
investigation, complainant was informed of his right to request a hearing
before an EEOC Administrative Judge or alternatively, to receive a final
decision by the agency. When complainant failed to respond within the
required time period, the agency issued its FAD.
In its FAD, the agency concluded that complainant failed to establish
a prima facie case of age, race or sex discrimination because he did
not demonstrate that he was qualified for the Asylum Officer position.
The Staffing Specialist reviewing the applications for the position
stated that complainant's SF-171 Application for Federal Employment
indicated that he was a GS-6 level employee. She further stated that
to qualify for the GS-11 Asylum Officer position, an applicant must
have 52 weeks of specialized training at the next lower grade level in
the normal progression for the occupation (GS-9). She stated that since
complainant did not meet the specialized training requirement, he was not
qualified for the position. In addition, the FAD concluded that other
than his subjective opinion, conjecture and supposition, complainant did
not provide any evidence demonstrating that his age, race or sex played a
part in his non-selection for the position. On appeal, complainant makes
no new contentions, while the agency requests that we affirm the FAD.
Applying the standards set forth in McDonnell Douglas Corp. v. Green,
411, U.S. 792 (1973) and Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979)
(requiring a showing that age was a determinative factor, in the sense
that "but for" age, complainant would not have been subject to the
adverse action at issue), the Commission agrees with the agency that
complainant failed to establish a prima facie case of age, race or
sex discrimination because he failed to show that he was qualified for
the Asylum Officer position. In reaching this conclusion, we note that
while complainant believes that his many years of experience should have
demonstrated his qualification for the position, nothing in the record
suggests that the specialized training requirement was discriminatory.
To the contrary, the record indicates that only those applicants meeting
the qualification requirements were place in Asylum Officer positions.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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
19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (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:
April 26, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.