01a55770_r
01-24-2006
Marvin E. Dargan, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Marvin E. Dargan v. Department of Homeland Security
01A55770
January 24, 2006
.
Marvin E. Dargan,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A55770
Agency No. I-03-E-117
DECISION
Complainant appeals to the Commission from the agency's February 23,
2005 decision finding no discrimination.<1> According to the agency's
decision, complainant alleges discrimination in reprisal for prior
EEO activity when in February 2001, complainant was informed that he
was not selected for the position of Detention Enforcement Officer,
GS-1802-6/7, under Vacancy Announcement Number ER MP RP 00-86 (MIA),
Krome North Service Processing Center, Miami, Florida.
We find that the agency articulated a legitimate, nondiscriminatory
reason for its actions. The record reveals that complainant's name was
referred to the Special Assistant to the Acting Director (SA); however,
complainant was not among those most qualified. The SA stated that,
when she called the Officer in Charge (OIC) for recommendations for the
alleged position, the OIC did not include complainant's name as one of
her recommendations. The OIC claimed that she did not
include complainant's name among those she recommended because complainant
had �ongoing disciplinary problems� and because �he had been suspended
on more than one occasion - for failure to follow orders, things of
that nature.� The Acting District Director (Acting DD), the selecting
official, asserted that he relied very heavily on the respective program
manager's recommendation, but did not recall the names of the persons
selected or the identity of the individual(s) that made the selection(s).
Complainant failed to rebut the agency's articulated legitimate,
nondiscriminatory reasons for the nonselection. Furthermore, complainant
failed to show that his qualifications for the Detention Enforcement
Officer position were plainly superior to the selectees' qualifications
or that the agency's action was motivated by discrimination. Moreover,
complainant failed to show, by a preponderance of the evidence, that he
was discriminated in reprisal for prior EEO activity.
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
January 24, 2006
__________________
Date
1This complaint was originally filed with the U.S. Department of Justice,
Immigration and Naturalization Service (INS). However, effective March
1, 2003, in accordance with the Homeland Security Act, this complaint
came under the jurisdiction of the Department of Homeland Security
(DHS). In the February 23, 2005 agency decision, the agency dismissed
for failure to state a claim complainant's claim that his supervisor
placed negative comments regarding complainant's job performance in
his performance file and lowered his performance appraisal rating on
April 28, 2001. However, DHS may not have been aware that this issue
was partially dismissed by INS in a decision dated December 11, 2001,
for failure to raise the matter with an EEO Counselor. There is no
indication in the record that complainant challenged the dismissal with
DHS or raised this matter in the instant appeal. Nevertheless, we find
that dismissal of this claim pursuant to 29 C.F.R. � 1614.107(a)(2)
is appropriate because the matter was not raised with an EEO Counselor
and is not like or related to a matter raised with an EEO Counselor.