05a00895
12-08-2000
Eladio Mora, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Eladio Mora v. Department of the Air Force
05A00895
December 8, 2000
.
Eladio Mora,
Complainant,
v.
F. Whitten Peters,
Acting Secretary,
Department of the Air Force,
Agency.
Request No. 05A00895
Appeal No. 01993492
Agency No. SAN-96-AF055E
Hearing No. 360-97-8389X
DENIAL OF REQUEST FOR RECONSIDERATION
Complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Eladio
Mora v. Department of the Airforce, EEOC Appeal No. 01993492 (May
23, 2000).<1> EEOC Regulations provide that the Commission may, in
its discretion, 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).
Complainant filed a complaint alleging discrimination on the bases of
his national origin (Hispanic) and sex (male) when, on August 24, 1995,
he was non-selected for an Inspection and Receiving Supervisor position,
WS-6901-07. The appellate decision affirmed the administrative judge's
(AJ) decision in finding no discrimination.
In his request for reconsideration, complainant argues that the AJ
erred in failing to conduct a hearing. In addition, complainant argues
that the record shows �striking discrepancies� that �demonstrate the
need for credibility determinations.� Specifically, complainant notes
that he had more �supply� experience than the selectee. In addition,
complainant notes that supervisory experience was not a prerequisite in
the position description for the position at issue. Complainant also
claims that the selecting official held a bias against him because of
his rumored sexual orientation.
The record shows the following undisputed facts from the record: The
position description for the position at issue (Inspection and Receiving
Supervisor) was skill coded 60% MKD (General Equipment Examiner) and 40%
MK3WA (Material Handling/Warehousing - Forklift Operator). In addition,
it was undisputed that the selecting official was looking for someone with
supervisory skills in addition to experience in inspection and receiving.
The experience of complainant and the three selectees were as follows:
Candidate MKD MK3WA Supervisory Appraisal Rating
Complainant None 99 months None Fully Successful
Selectee 1 49 months 24 months 165 months Excellent
Selectee 2 None 20 months 239 months Superior
Selectee 3 3 months 69 months 9 months Excellent
The record does not indicate that complainant was significantly more
qualified than the selectees. In addition, complainant failed to profer
any corroborating evidence of his allegation of sexual orientation
bias which was highly disputed by the selectee. Nevertheless, sexual
orientation bias is not within the current purview of the laws enforced
by the Commission. We find the AJ's decision based upon the undisputed
record supported by substantial evidence.
Moreover, after a review of the complainant's request for reconsideration,
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. 01993492 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 (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
December 8, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.