01A62627
08-10-2006
Edward D. Washington, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Edward D. Washington,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A62627
Agency No. 04-11-116
DECISION
Complainant appeals to the Commission from the agency's March 14, 2006
decision finding no discrimination. According to the agency's decision,
complainant alleges discrimination on the basis of race (African-American)
when, on May 12, 2004, complainant was informed that he was not selected
for the Contract Specialist, GS-1102-09 position, advertised under Vacancy
Announcement No. ETA-04-047PN.
We find that the agency articulated a legitimate, nondiscriminatory reason
for the nonselection. The Chief of the Division of Contract Services was
the Selecting Official (SO) for the position. As the SO explained, he
"reviewed each candidate's application, compared their knowledge, skills
and abilities with the evaluation factors" to select the best qualified
candidate. In his affidavit, the SO contrasted complainant's
qualifications with those of the selectee. For example, the SO cited the
fact that complainant "had no current experience as a contract specialist,"
and that the Federal Acquisition Regulations had changed significantly
since 1994 when complainant demonstrated his last experience as a Contract
Specialist. The SO found that complainant's description of his
qualifications only demonstrated his knowledge of the terminology, rather
than an explanation of how he performed certain functions. Moreover, the
SO stated that he had no personal knowledge of complainant's work.
In comparison, the SO had personal knowledge of the selectee's work based
on the fact that she had worked for a year as a Contract Specialist Trainee
in the Division. During that time, the selectee participated in a number
of training courses on topics, including Federal Contract Law, Federal
Contract Negotiation Techniques, Architect-Engineer Services Contracting
and Construction Contracting. In addition, the SO found that the selectee
described her knowledge, skills and abilities in greater detail than
complainant. The SO also noted that the selectee was ranked as the best
qualified candidate by the applications review panel, while complainant was
ranked second.
The Commission finds that complainant failed to rebut the agency's
articulated legitimate, nondiscriminatory reason for the selection
decision. Furthermore, complainant failed to show that his qualifications
for the Contract Specialist position were plainly superior to the
selectee's qualifications or that the agency's actions were motivated by
discrimination. Complainant failed to show, by a preponderance of the
evidence, that he was subjected to discrimination on the basis of race.
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
August 10, 2006
__________________
Date