0120064816
05-29-2008
Charles M. Johnson, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Charles M. Johnson,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 01200648161
Agency No. ARMEADE04AUG0055
DECISION
Complainant appeals to the Commission from the agency's decision
dated August 1, 2006, finding no discrimination. In his complaint,
dated September 13, 2004, which was later amended, complainant alleged
discrimination based on disability (diabetes) and in reprisal for
prior EEO activity when: he was not selected for a vacant General
Supply Specialist, GS-2002-11 position, Vacancy Announcement Number,
NCBF04027256, opening date, July 22, 2004, and closing date, August 5,
2004; and on September 28, 2004, his supervisor informed him that he
received a second list for the General Supply Specialist, GS-2002-11
position and that although his name appeared on the referral list,
he was not going to select him.
Initially, it is noted that in his complaint, complainant also alleged
that on August 10, 2004, his supervisor issued him a letter informing him
that his representational activity presented a conflict of interest or
a conflict of position with his official duties. The agency dismissed
this claim pursuant to 29 C.F.R. �1614.107(a)(1). Complainant was
therefore denied leave to represent a federal employee at her upcoming
EEO investigation scheduled for August 12, 2004. The record indicated
that complainant was paid for representing that employee for her EEO case.
Upon review, the Commission finds that complainant does not have standing
to raise this matter because he filed the claim as a representative.
Rather, the right to representation is a privilege of employment belonging
to the employee who complainant was seeking to represent. Therefore,
a decision disqualifying him as representative in this case was properly
raised by that employee, as she did, and not the representative. See 29
C.F.R. � 1614.605. Thus, the Commission finds that the agency properly
dismissed this claim for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1). 2
After completion of the investigation of the complaint, concerning
the alleged nonselection, complainant requested a hearing but later
withdrew the request. The agency then issued its decision concluding
that it asserted legitimate, nondiscriminatory reasons for its action,
which complainant failed to rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons for
the alleged nonselection. The agency stated that complainant and over 150
candidates applied for the position at issue. However, complainant's name
was not on the referral list of 22 best qualified candidates. A selecting
official selected a selectee for the position from that referral list.
The record indicates that on July 11, 2004, complainant received a
temporary promotion (not-to-exceed November 10, 2004) from his position
of Program Analyst, GS-9, to the position of General Supply Specialist,
GS-11, in the Activity's Directorate of Logistics, Supply and Services
Division. Complainant's supervisor stated that he did not recommend
complainant for the position at issue because he did not possess the
necessary temperament for the position. Specifically, in August 2004,
a major private contractor, Johnson Controls, Inc., complained about
complainant's unprofessional behavior during the contract phase at
Fort Meade beginning in May 2004. Despite complainant's claim, the
agency stated that there was no second referral list for the position
at issue.
We find that complainant failed to show that his qualifications for
the position were plainly superior to the selectee's qualifications
or that the agency's actions were motivated by discrimination.
See Wasser v. Department of Labor, EEOC Request No. 05940058 (November
2, 1995). There is no indication that any agency action was motivated
by discrimination. The Commission does not address in this decision
whether complainant is a qualified individual with a disability. It is
noted that complainant clearly has not claimed in his complaint that he
was denied a reasonable accommodation; nor has he claimed that he was
required to work beyond his medical restrictions. It is noted that
on appeal, complainant submits that he "withdraws his allegations of
disability discrimination and promotion contentions," but then appears
to possibly limit that withdrawal.
Accordingly, the agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
5/29/2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 The record indicates that the identified employee, Beverly Kish,
properly raised the issue of the disqualification of her representative
(Charles Johnson) during her EEO complaint. The Commission found that
the disqualification was proper in Kish v. Department of the Army,
EEOC Appeal No. 0120055784 (July 5, 2007).
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0120064816
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036