0520100125
02-26-2010
Marvin Porter, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Marvin Porter,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Request No. 0520100125
Appeal No. 0120081237
Agency No. 7S0M06002
DENIAL
Complainant timely requested reconsideration of the decision in Marvin
Porter v. Department of the Air Force, EEOC Appeal No. 0120081237 (October
30, 2009). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In January 2006, complainant sent his resume to the agency's Air Force
Reserve Command, in Minneapolis, Minnesota, requesting an interview as
a reasonable accommodation, even though no positions were available
at that time. The personnel office (PO) informed him that all agency
civilian personnel activity, including applications under Schedule A,
was centered at Randolph Air Force Base, Texas, at the Air Force Personnel
Center (AFPC). She provided complainant contact information, including a
toll-free telephone number, and an agency job kit; she advised him that
specialists at AFPC would assist him in establishing a file and that,
once his record was on file, AFPC would assist him in applying for vacant
positions. As to interviews, the PO informed him that interviews were
conducted at the option of the selecting official (SO), after processing
through AFPC and creation of a list of eligibles.
When a vacancy announcement was posted for the position of Administrative
Personnel Assistant (Office Automation) in February 2006, complainant
again called the PO, asking that his January 2006 resume be considered
his application for the open position. The PS again informed him
that he must initiate all hiring activity through AFPC. After the
announcement closed, the agency reviewed the applications and certified
63 candidates qualified for the position. Complainant never contacted
AFPC and, thus, he was not considered for the position; the selectee
chosen was a White male, age 43, disability status unknown. Complainant
alleged that the agency discriminated against him on the bases of race
(African American), sex (male), disability (blindness), age (54), and in
reprisal for prior protected EEO activity when (a) he was not provided
a reasonable accommodation during the application process; and (b)
he was not interviewed or selected for the position of Administrative
Personnel Assistant (Office Automation), advertised in February 2006,
under Schedule A appointing authority.
According to complainant, the agency failed to provide him a reasonable
accommodation when it refused to grant him an interview and discriminated
against him when he was not selected for the position. Among other things,
he stated that he sought hiring through Schedule A and that, once he sent
his resume to the PO in Minneapolis, the agency was obligated to contact
him when a job for which he was qualified became available. The agency
contended that it provided complainant with a reasonable accommodation,
in that, it presented him the job kit and telephone number for AFPC
and advised him that AFPC representatives would assist him in creating
a file record and a verified resume; his failure to do so precluded
him from consideration for the position, under any hiring authority,
including Schedule A.
On appeal, the previous decision found that that the agency provided
complainant a reasonable accommodation when it referred him to AFPC in
order to enable him to obtain assistance to establish a file and complete
his verified resume. The previous decision also found that there is no
evidence that others were allowed to bypass AFPC and were hired.
In his request for reconsideration, complainant, in pertinent part,
indicated that he and another individual applied for positions in 1984
without having to go through the AFPC. For the most part, complainant
maintained that this was evidence of pretext. Complainant also reiterated
his overall contention that there were various vacancies available,
for which he was qualified, when he sent his resume to the PO; and,
therefore, he timely and properly applied for the position.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. We remind complainant that a "request for reconsideration
is not a second appeal to the Commission." Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (rev. Nov. 9, 1999),
at 9-17. The decision in EEOC Appeal No. 0120081237 remains the
Commission's decision. As correctly stated by the previous decision,
complainant did not comply with the agency's application procedures,
did not file an application, and therefore was not considered for the
position at issue. We further note that although the agency may have had
different procedures over 20 years ago, there is no evidence that it acted
discriminatorily in 2006. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
___2/26/10_______________
Date
2
0520100125
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520100125