01a23522_r
10-08-2002
Waverly L. Clark, Sr., Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Waverly L. Clark, Sr., v. Department of Veterans Affairs
01A23522
October 8, 2002
.
Waverly L. Clark, Sr.,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A23522
Agency No. 200K-0578
Hearing No. 210-A0-6461X
DECISION
The record indicates that complainant filed an appeal from the agency's
final action dated May 16, 2002, finding that he was not discriminated
against on the bases of race (Black), sex (male), and in reprisal for
prior EEO activity when in September 1999, he was not referred and was
not selected for the position of EEO Specialist, GS-12, under Promotion
Announcement 99-232 H (reposted as 00-49 H).
For the reasons described below, the Commission affirms the agency's
final action.
The record reveals that complainant, a Police Officer, GS-6, filed a
formal complaint with the agency on November 29, 1999. At the conclusion
of the investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
The AJ determined that complainant failed to establish a prima facie case
of discrimination. The AJ further concluded that the agency articulated
a legitimate, nondiscriminatory reason for its action. The agency stated
that complainant was not referred for selection because he did not meet
the time-in-grade restrictions. The record indicates that the posting
for the position required that the applicant have one year of specialized
experience equivalent to the GS-11 grade level. Complainant was working
as a Police Officer, grade GS-6, when he applied for the position.
The AJ also found that complainant did not establish that more likely
than not, the agency's articulated reason was a pretext to mask unlawful
discrimination. The agency's final action implemented the AJ's decision.
Complainant makes no new persuasive contentions on appeal.
After a review of the record in its entirety, including consideration of
all statements submitted on appeal, the agency's final action is hereby
AFFIRMED because the AJ's issuance of a decision without a hearing was
appropriate and a preponderance of the record evidence does not establish
that discrimination occurred.
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
October 8, 2002
__________________
Date