01a00469
03-07-2000
Warren D. Zimmer, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Warren D. Zimmer, )
Complainant, )
)
v. ) Appeal No. 01A00469
) Agency No. P-97-9340
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
_______________________________ )
DECISION
The Commission finds that the agency's October 12, 1999 decision
finding that the agency did not discriminate against complainant based on
complainant's race (White) was proper.<1> In the complaint complainant
alleged that he was discriminated against when he was not selected on
September 15, 1997, for the position of WITSEC Unit Manager, GS-13,
in Fairton, New Jersey. Complainant did not request a hearing.
The record shows that at the time of the complaint complainant was a
GS-12 Unit Manager with the agency in Memphis, Tennessee. The record
shows that the Selectee's race was Black and that Selectee was a GS-12
Unit Manager with the agency in Three Rivers, Texas. The Recommending
Official stated in an affidavit that he chose the Selectee because:
[The Selectee] demonstrated at an outstanding level the required
knowledge, skills, abilities and experience in supervisory roles as a
Unit Manager and Lieutenant to function as a WITSEC Unit Manager.
[Complainant] rated as just an exceeds in his position as Unit Manager.
The Selecting Official stated that he had no particular recollection of
the selection at issue.
The record shows that complainant's overall performance rating (for the
period ending March 31, 1997) that he submitted with his application was
the second highest possible rating. The Selectee's overall performance
rating (for the period ending March 31, 1997) that he submitted with his
application was the highest possible rating. The Commission finds that
the agency has articulated a legitimate, non-discriminatory reason for
choosing the Selectee instead of complainant.
Complainant argues that he should have been selected instead of the
Selectee because of the complainant's superior experience. The Commission
finds that even if complainant's experience was superior to the Selectee's
experience, complainant has failed to show that the agency's reliance
on the Selectee's superior overall performance rating was a pretext
for discrimination. Complainant, by virtue of his lower performance
rating, has not shown that his qualifications were so plainly superior
to the Selectee's qualifications that a finding of discrimination
may be made. See Fodale v. Department of Health and Human Svcs.,
EEOC Request No. 05960344 (Oct. 16, 1998). The Commission finds that
complainant has failed to show that his non-selection was motivated by
discrimination on the bases of complainant's race.
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 7, 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.