Peter M. Kush, Complainant,v.Michael Chertoff, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionMay 9, 2007
0120062054 (E.E.O.C. May. 9, 2007)

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.

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0120062054

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036