01A22969_r
08-21-2002
Philip Olt IV, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Philip Olt IV v. Department of the Army
01A22969
August 21, 2002
.
Philip Olt IV,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A22969
Agency No. AVEJFO0106B0120
DECISION
Complainant timely initiated an appeal from an agency decision concerning
his complaint of unlawful employment discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.
The record reveals that during the relevant time, complainant was
an applicant for employment at the agency's Fort Huachuca facility.
Complainant sought EEO counseling and subsequently filed a formal
complaint on July 12, 2001, alleging that he was discriminated against
on the bases of race (German American), sex (male), disability (limited
motion in cervical spine, limited motion in lumbar spine, tinnitus,
loss of nerve in little finger, prostate gland condition), and age (56)
when he was not referred for any vacancies processed by the West Civilian
Personnel Operations Center (WCPOC).
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. Complainant
did not respond to the agency's notice and accordingly, the agency issued
a final decision dated April 10, 2002.
In its decision, the agency concluded that complainant was not
discriminated against based on race, sex, disability or age
discrimination.
The Commission concurs with the agency's determination that complainant
failed to establish a prima facie case of race, sex, disability or
age discrimination. Specifically, we find that complainant was unable
to demonstrate that similarly situated persons, not in complainant's
protected classes were referred for vacant positions by WCPOC, while
complainant was not. Rather, the sworn testimony of the agency's
Acting Director of WCPOC confirms that the agency referred and filled
29 requisitions for positions (matching occupational and geographic
specifications identified on complainant's application) during the time
complainant's application was pending with the agency. Of those, 16
positions were either temporary (which complainant indicated he would
not accept) or graded at levels below the lowest acceptable grade level
complainant indicated he would accept. Of the remaining 13 positions,
the agency referred and selected 8 candidates with disabilities, 8 white
candidates, 6 male candidates and at least 7 of the selectees were age
40 or over.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the agency's
decision finding that no discrimination occurred.
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 21, 2002
__________________
Date