Marvin Porter, Complainant,v.Mike Donley, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionFeb 26, 2010
0520100125 (E.E.O.C. Feb. 26, 2010)

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