01a00657
03-21-2000
Steven R. Rundle, )
Complainant, )
)
v. ) Appeal No. 01A00657
) Agency No. 98-0658-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security Administration, )
Agency. )
________________________________)
DECISION
The Commission finds that the agency's September 27, 1999 decision
finding that the agency did not discriminate against complainant based on
complainant's disability (diabetes) and in retaliation for prior protected
activity, was proper.<1> Complainant alleged in his complaint that he was
discriminated against when he was not selected for the two GS-7 Records
Processing Specialist positions (WB-848 and WB-854). Complainant did
not request a hearing before an EEOC Administrative Judge.
The record shows that complainant did not make the certification list
for either vacancy and that his name was therefore never forwarded to
the selecting official(s). The record shows that Personnel Management
Specialist A made a qualifications determination for WB-848 and that
Personnel Management Specialist B made a qualifications determination
for WB-854. In separate affidavits, both Personnel Management Specialist
A and Personnel Management Specialist B stated that complainant was not
certified (i.e., not qualified) because he failed to indicate on his
application that he had the required specialized experience relating
to the vacancy. Personnel Management Specialists A and B described the
required specialized experience as experience in:
Gathering, analyzing, compiling and computing statistics to make
determinations related to work in process, reviewing and monitoring
work operations, and analyzing training needs, or other experience which
demonstrates the use of similar knowledge, skills and abilities.
The Commission finds the agency's explanation of why complainant was not
selected for the vacancies to be legitimate and non-discriminatory. The
Commission finds that the vacancy announcements contain the specialized
experience requirement described by Personnel Management Specialists
A and B. The Commission's review of complainant's applications shows
that it was reasonable for Personnel Management Specialists A and B to
conclude that complainant's applications failed to specifically show
that complainant had the requisite specialized experience.
The Commission finds that complainant has failed to rebut the agency's
articulated reason for not selecting complainant. Complainant has failed
to show that either of his applications showed that he had the requisite
specialized experience. Complainant has also failed to show that the
experience requirement was a pretext for discrimination. The Commission
finds that complainant has failed to show by a preponderance of the
evidence that his non-selections were motivated in any way by prohibited
discriminatory animus. Because of our disposition we do not address
whether complainant was disabled or whether he engaged in prior protected
activity.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 21, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ Date
1On 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.