01a60631
04-05-2006
Gene M. Bland, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Gene M. Bland v. Department of Transportation
01A60631
April 5, 2006
.
Gene M. Bland,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A60631
Agency No. 2005-19034-FAA-05
DECISION
Complainant appeals to the Commission from the agency's September 22,
2005 decision finding no discrimination. According to the agency's
decision, complainant alleges discrimination on the bases of race (Native
American), national origin (Native American), age (date of birth: April
23, 1945), and in reprisal for prior EEO activity when on November 14,
2004, complainant was informed that his temporary promotion to a GS-14
was not extended beyond the previously established six-month period and
he was reassigned to his former GS-13 position.
We find that the agency articulated a legitimate, nondiscriminatory
reason for its actions. The Unit Supervisor stated that he explained
to complainant that his promotion to the GS-14 position was for a
Not To Exceed (NTE) period. The Unit Supervisor asserted that he also
informed complainant that after the NTE period lapsed, and if the position
itself was made permanent, complainant would have to competitively bid.
The Unit Supervisor indicated that complainant was further informed
that no employee could be assigned to a noncompetitively bid position
for more than six months in any twelve-month period.
The Unit Supervisor articulated that he was not aware of any other
employee who had been in a temporary position and then permanently placed
without competitively applying for the position. The Unit Supervisor
argued that the sole reason complainant was not allowed to remain in the
position beyond the NTE period was because it would have been contrary
to the agency promotion requirements. In describing the process of
making a temporary position permanent, the Unit Supervisor said that
approval from the Headquarters Office was necessary to justify any
increase in local staffing. Regarding the temporary position to which
complainant was promoted, the Unit Supervisor reported that the Dallas
Flight Standards District Office (DAL-FSDO) did not have the requisite
approval to increase staffing levels.
Complainant failed to rebut the agency's articulated legitimate,
nondiscriminatory reasons for its actions. Furthermore, complainant
failed to show that the agency's action was motivated by discrimination.
Moreover, complainant failed to show, by a preponderance of the evidence,
that he was discriminated on the bases of race, national origin, age
or reprisal.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 5, 2006
__________________
Date