0120072215
08-23-2007
Anthony J. Zaleski, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Anthony J. Zaleski,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120072215
Agency No. 06-54-00072
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's February 22, 2007 final decision concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the relevant time, complainant was employed as an Intern
Meteorologist, GS-1340-11, at the agency's National Weather Service
Chanhassen Office in Chanhassen, Minnesota.
Complainant claimed that he was the victim of unlawful employment
discrimination on the basis of age (D.O.B. 08/26/60) when:
on January 21, 2006, he was not selected for the position of Meteorologist
(General Forecaster), GS-1340-7/9/11/12, advertised under Vacancy
Announcement No. NWS-CR-2006-104.
The Selecting Official (SO) stated that eighteen candidates,
including complainant, applied for the position of Meteorologist
(General Forecaster). SO stated that prior to making his selection, he
asked the Scientific Operations Officer (SOO) to rank the candidates.
SO stated that according to SOO, there were seven ranking categories
with the maximum awarded in each category which consisted of 10 points;
and that the seven categories were as follows: (1) warnings and forecast
operations, (2) focal point accomplishments, (3) responds positively
to constructive criticism, (4) positive attitude, (5) team player,
(6) leadership and (7) uses slow time efficiently. SO stated that
following the ranking of the candidates, he interviewed the four top
ranking candidates with ranking scores from 69.5 to 63. SO stated that
because complainant was ranked 15th with an overall score of 35 points,
he did not interview complainant for the subject position. SO further
stated that he chose the selectee (ranked 2nd, with an overall score of
67 points) for the subject position because he was the best qualified.
Specifically, SO stated that the selectee "with overall accomplishments,
demonstrated initiative in slow time, completion of training, ability
to work well with others, well-documented diversity of skills and his
superb performance delivered during very hazardous weather episodes,
was clearly more qualified for the position than the complainant was."
On appeal, complainant requests that the agency's final decision be
rescinded because he was never given an opportunity for a hearing before
an EEOC Administrative Judge (AJ). Specifically, complainant states
"I signed and sent in my request for a hearing to the EEOC Minneapolis
Area office on July 22, 2006. I have enclosed a copy of this form with
this correspondence, as suggested by [an identified AJ]."
In response, the agency argues that by letter dated July 17, 2006,
complainant was properly advised of his right to request a before an AJ.
The agency further argues that it received neither a copy of the request
for the hearing nor any order from the EEOC's Minneapolis Area Office
informing them of a request for a hearing. Furthermore, the agency
argues that complainant's failure to properly notify the agency and/or
the Minneapolis Area Office concerning the instant complaint should not
be excused.
As a threshold matter, the Commission finds no evidence in the record
indicating that complainant submitted his request for a hearing to the
appropriate EEOC office in a timely manner. Therefore, we find that
the agency properly issued final agency decision on February 22, 2007
after receiving no request from complainant.
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
SO articulated legitimate, nondiscriminatory reasons for not selecting
complainant, based on his low numerical ranking score and limited work
experience. This is adequate to rebut any initial inference of unlawful
discrimination raised in this case. Complainant has not proven, by a
preponderance of the evidence, that these articulated reasons were not
true, but offered only to mask the true discriminatory motive.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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
August 23, 2007
__________________
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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