01A00995_r
08-30-2002
Merle W. Tucker, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Merle W. Tucker v. Department of Energy
01A00995
August 30, 2002
.
Merle W. Tucker,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A00995
Agency No. 99-08-18RMR1
DECISION
Complainant appealed to this Commission from the agency's final
decision finding no discrimination. In his employment discrimination
complaint, complainant alleged harm on the bases of race (wife is Asian),
management favoritism, his status as a disabled veteran, and age (56)
when complainant was not selected for the position of Electronic
Equipment Craftsman Foreman II, WB-2619, that was advertised under
vacancy announcement number RMR-99-017.
On October 8, 1999, the agency accepted complainant's claim on the
bases of race and age, but dismissed the bases of management favoritism
and status as a disabled veteran for failure to state a claim. The
Commission concurs with the agency's dismissal pursuant to 29 C.F.R. �
1614.107(a)(1); the Commission's jurisdiction is limited to the bases of
race, color, national origin, sex, religion, age, or disabling condition.
See 29 C.F.R. �� 1614.103, .106(a). We have no jurisdiction over claims
of management favoritism or discrimination based on veteran status.
See Glen v. Department of Veterans Affairs, EEOC Request No. 05910927
(February 21, 1992) (veterans preference not within EEOC's jurisdiction);
Roth v. Department of Commerce, EEOC Request No. 05910129 (March 7, 1991).
The Commission also finds no discrimination on the merits of complainant's
accepted bases. Complainant and the selectee were both Caucasian,
and the selectee was fifty-one years old at the time of the selection.
Even assuming that complainant established a prima facie case, he
failed to show that the agency's articulated reasoning was a pretext
for discrimination. After a review of the record in its entirety,
including consideration of all statements submitted on appeal, the
Commission finds that the preponderance of the evidence of record does
not establish that discrimination occurred. Accordingly, the agency's
final decision 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
August 30, 2002
__________________
Date