0520130227
06-28-2013
David P. Johnson, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, Agency.
David P. Johnson,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
Agency.
Request No. 0520130227
Appeal No. 0120122431
Hearing No. 430-2011-00127X
Agency No. 2010-23525-MARAD-01
DENIAL
Complainant timely requested reconsideration of the decision in David P. Johnson v. Department of Transportation, EEOC Appeal No. 0120122431 (January 9, 2013). 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 the underlying case, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when he was not selected for the position of Rigger Leader, WL-5210-10.
The appellate decision affirmed the Agency's final order, which implemented an EEOC Administrative Judge's (AJ) decision without a hearing finding no discrimination. Specifically, the appellate decision found that the AJ's issuance of a decision without a hearing was appropriate because no genuine issues of material fact existed. Moreover, the appellate decision found that a preponderance of the evidence in the record did not establish that Complainant was discriminated against as alleged.
Specifically, the appellate decision found that the Agency articulated legitimate, nondiscriminatory reasons for not selecting Complainant; namely, the Selectee received the highest score on the interview questions and Complainant did not have the leadership or computer skills required for the position. In addition, the appellate decision found that Complainant failed to prove, by a preponderance of the evidence, that the Agency's reasons were a pretext for race discrimination. In so finding, the appellate decision determined that Complainant's qualifications were not observably superior to those of the Selectee. Regarding Complainant's argument that he had more years of experience than the Selectee, the appellate decision noted that the number of years of experience, alone, was insufficient to establish that someone's qualifications were observably superior. Regarding Complainant's argument that the Selectee was unqualified for the position due to having never held a rigging position, the appellate decision found that the record established that the Selectee had the skills needed for the position and there was no evidence that the Selectee was unqualified for the position.
In his request for reconsideration, Complainant argued that the appellate decision misapprehends what it means to be a Rigger Leader and erred in finding that the Selectee was qualified for the position. Specifically, Complainant asserted that a Rigger Leader must perform rigging work and lead others in performing rigging work - something that the Selectee, who had never been a Rigger and claimed no experience as a Rigger, could not do. In addition, Complainant asserted that the leadership and computer skills he allegedly lacked had nothing to do with rigging and amount to only a small portion of what a Rigger Leader would do.
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact tor law, or that the appellate decision will have a substantial impact on the policies, practices or operations of the Agency. The record reflects, as found by the appellate decision and contrary to Complainant's assertions, that the Selectee was qualified for the Rigger Leader position. Although the Selectee had never held a Rigger position, the vacancy announcement did not require candidates to have previously held a Rigger position; it only required candidates "to have experience and/or training of sufficient scope and quality to perform the duties of a Rigger Work Leader." Report of Investigation (ROI), at 223. Moreover, the Selectee's responses to questions 6-13 of the application assessment questionnaire described his knowledge and experience in completing duties relevant to the Rigger Leader position. Id. at 97-98. Finally, the vacancy announcement stated that one of the four job elements the candidates' applications will be rated on is the "[a]bility to lead or supervise." Id. at 223.
After reviewing 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. The decision in EEOC Appeal No. 0120122431 remains the Commission's decision. 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 (P0610)
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 (Z0610)
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
___6/28/13_______________
Date
2
0520130227
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520130227