0120062054
05-09-2007
Peter M. Kush, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, Agency.
Peter M. Kush,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01200620541
Agency No. CBP-04-E030
DECISION
Complainant appeals to the Commission from the agency's decision
dated January 31, 2006, finding no discrimination. In his complaint,
complainant, a former retired employee, alleged discrimination based
on age (DOB: 9/14/1946) and disability (post-traumatic stress syndrome)
when:
1. In June 2003, he became aware that he was not selected for the
position of Immigration Inspector, GS-1816-11, advertised under Vacancy
Announcement Number ER OC 03-18 (MIA), Miami District, Florida;
2. In July 2003, he became aware that he was not selected for the
position of Immigration Inspector, GS-1816-11, advertised under Vacancy
Announcement Number ER OC 03-17 (MIA), Miami District, Florida;
3. In September 2003, he became aware that he was not selected for the
position of Immigration Inspector, GS-1816-11, advertised under Vacancy
Announcement Number ER OC 03-75 (MIA), Miami District, Florida; and
4. Subsequent to September 2003, he was not advised of, and as a
consequence assumed that he was not selected for the position of
Immigration Inspector, GS-1816-11, advertised under Vacancy Announcement
Number ER OC 03-82 (MIA), Miami District, Florida.
After completion of the investigation of the complaint, complainant
requested a hearing but later withdrew the request. The agency then
issued its decision dismissing claims 1 and 2 due to untimely EEO
Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2), and finding
no discrimination concerning claims 3 and 4.
With regard to claims 1 and 2, the record indicates that the alleged
incidents occurred in June and July 2003. Complainant contacted an EEO
Counselor with regard to the alleged incidents on September 22, 2003,
which was beyond the 45-day time limit set by the regulations. On appeal,
complainant fails to present adequate justification to warrant an
extension of the applicable time limit for contacting an EEO Counselor.
With regard to claim 3, the agency stated that a selecting official
selected an identified selectee (S1) because S1, as an INS Adjudications
Officer and Supervisory Immigration Information Officer, had work
experience "closely related" to the duties of the position at issue;
thus, she was more qualified than the other candidates on the certificate
list, including complainant. With regard to claim 4, the selecting
official selected two selectees (S2 and S3) for the Immigration Inspector
position at issue because both S2 and S3 had experience as an Immigration
Inspector, i.e., S2 about 5 years and S3 about 7 years, and complainant
had none. Here, complainant failed to show that his qualifications for
the positions were plainly superior to the selectees' qualifications or
that the agency's actions were motivated by discrimination. See Wasser
v. Department of Labor, EEOC Request No. 05940058 (November 2, 1995).
The record indicates that at the time complainant applied for the
positions at issue, he was a Senior Border Patrol Agent, GS-11/12-(10),
and he subsequently retired on September 30, 2003.
After a review of the record, the Commission finds that there is no
evidence that the agency's actions were motivated by discrimination.
It is noted that the Commission does not address in this decision whether
complainant is a qualified individual with a disability. In the instant
case, complainant clearly has not claimed that he was denied a reasonable
accommodation; nor has he claimed that he was required to work beyond
his medical restrictions.
Therefore, the agency's final decision dismissing claims 1 and 2 and
finding no discrimination with regard to claims 3 and 4 is AFFIRMED.
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
May 9, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
??
??
??
??
4
0120062054
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036