05A20539
01-28-2003
James R. Welcome, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
James R. Welcome v. Department of the Navy
05A20539
January 28, 2003
.
James R. Welcome,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Request No. 05A20539
Appeal No. 01A04820
Agency No. 9760508001
Hearing No. 150-98-8234X
DENIAL OF REQUEST FOR RECONSIDERATION
James R. Welcome (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decision in James R. Welcome v. Department of the Navy, EEOC Appeal
No. 01A04820 (February 25, 2002). 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).
The underlying decision, complainant argued that, because of his race
(Black) and sex (male), he was discriminatorily not selected for the
position of Family Service Center Director, GS-12, Merit Promotion
Announcement CPE-431 (96), at the Naval Air Station Whiting Field, in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. On appeal, we concluded that
the EEOC Administrative Judge's conclusion that discrimination did
not occur was supported by the substantial evidence of the record.
In so concluding, we noted that, �[an] agency has broad discretion to
set policies and carry out personnel decisions, and [that discretion]
should not be second-guessed by the reviewing authority absent evidence of
unlawful motivation. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 259; Vanek v. Department of the Treasury, EEOC Request
No. 05940906 (January 16, 1997).� Welcome v. Department of the Navy,
EEOC Appeal No. 01A04820 (February 25, 2002)
In his request for reconsideration, complainant reiterates the argument
he made on appeal that he was more qualified than the selectee, based
on the fact that he has a master's degree and the selectee does not.
Both the AJ, and this Commission on appeal, have considered that argument
and found it did not prove by a preponderance of the evidence that
discrimination occurred. Complainant further states that the agency
violated �Merit Promotion Standards of fairness and equal opportunity,�
when he was not selected for the position at issue. Merit promotion
standards are not enforced by this agency unless the question of fairness
is based on someone's membership in a protected class. The issue is
not whether a decision was fair or not, but rather, was the decision
discriminatory. We have concluded that, in the instant case, it was not.
Therefore, after a review of 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. 01A04820 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
January 28, 2003
__________________
Date