01A11502
07-19-2001
Anthony Levesanos, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Anthony Levesanos v. Department of the Army
01A11502
July 19, 2001
.
Anthony Levesanos,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A11502
Agency No. HT 9904J0090
Hearing No. 160-AO-8614X
DECISION
Complainant timely initiated an appeal from the agency's final decision
of November 20, 2000 concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000 et seq. The appeal is accepted pursuant to
29 C.F.R. � 1614.405.
Complainant claims that he was discriminated against on the bases of
national origin (Greek ancestry) and reprisal (prior EEO activity under
Title VII)<1> when, in March 1999, he was not selected for the position
of Chief, Construction Division, GS-0810-15, New York Engineer District.
Complainant filed a formal complaint, dated April 29, 1999, raising
the issue above. Following the issuance of the Report of Investigation,
complainant requested a hearing before an EEOC administrative judge (AJ).
The agency filed a motion for summary judgment which was granted by
the AJ. The AJ then issued a decision without a hearing which found no
discrimination. The agency adopted the AJ's decision as its final order.
Complainant now appeals the final order.
At the time of the alleged discrimination, complainant held the position
of Acting Chief, Construction Division, U.S. Army Corps of Engineers,
New York District. Complainant and six (6) other applicants applied
for the subject position. After reviewing the applications and after
personal interviews with the applicants, the selecting panel (SP)
recommended complainant (1st choice) and another candidate (C-1;
2nd choice) to the selecting official (SO). However, after consulting
with the senior executive service (SES) member (the Member) of the SP,
the SO concluded that another selection panel (the Panel) should be
convened to interview the applicants.<2> The Panel recommended for
selection an applicant other than complainant or C-1. The SO accepted
the Panel's recommendation and chose the selectee, who is Hispanic.
National Origin
The AJ agreed that complainant failed to establish a prima facie case
of national origin discrimination in that there was no evidence that
either the Panel or the SO were aware of complainant's national origin
during the selection process. In addition, the AJ found that the agency
articulated legitimate, nondiscriminatory reasons for its action, which
complainant failed to prove were pretextual.
According to the agency, the selectee was chosen because he was the best
qualified applicant. Specifically, the Panel members and the SO testified
that the selectee's interview was superior to complainant's, particularly
with regard to the selectee's superior corporate, visionary perspective
and overall response to questions. One of the Panel members testified
that the selectee was chosen over complainant because of his superior
diversity of experience serving in multiple offices and organizational
levels. In addition, the SO referenced the selectee's keen understanding
of construction/operations functions through civil and military assignment
and service in seven different Corps organizations.
The AJ agreed with the agency that complainant failed to establish
pretext. The AJ found no other evidence which indicated that the
responsible agency officials were even aware of complainant's national
origin. The AJ rejected complainant's contentions that the selectee
was preferred because he represented a minority by being Hispanic.
Reprisal
The AJ agreed with the agency that complainant failed to establish a
prima facie case of reprisal discrimination in that he did not show that
the responsible officials were aware of his prior EEO activity and did
not show any nexus between his protected activity and the nonselection.
The SO testified that he had not known of complainant's EEO activities
in New York as he had not assumed his position at New York Headquarters
until October 1999. The Member also testified that he was unaware of
complainant's prior EEO activity when he suggested to the SO that he'd
had concerns about the first SP and the manner in which it went about
the selection process. The Panel members also stated that they were
unaware of complainant's prior EEO activity. In addition, the agency
also noted that complainant's prior EEO activity occurred more than five
(5) years before his non-selection to the Chief position.
Finally, the AJ also agreed, that in any case and as discussed above,
the agency articulated legitimate, nondiscriminatory reasons for the
nonselection which complainant failed to prove were pretextual.
Analysis and Findings
After a careful review of the record, the Commission finds that the AJ
properly found that complainant failed to prove, by a preponderance of
the evidence, that he was discriminated against as alleged. After a very
careful review of the record evidence, including the Investigative hearing
and complainant's submissions on appeal, we agree with the AJ that the
agency submitted legitimate, nondiscriminatory reasons for its actions
which complainant failed to prove were pretext to mask national origin
and reprisal discrimination. Complainant simply submitted no evidence
which tied any of the agency's actions to his national origin or to
his prior EEO activity. Complainant was unable to adequately rebut the
testimony of responsible agency officials that they were even aware of
complainant's national origin or his prior EEO activity. We discern no
basis to disturb the AJ's decision. Therefore, after a careful review of
the record, including complainant's contentions on appeal, the agency's
response, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the final decision of the agency.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
July 19, 2001
__________________
Date
1 The record shows that complainant filed a prior EEO complaint in 1993
which was settled in 1994.
2 The record shows that the SO had convened a new selection panel at
least three other times when he was serving as a selecting official
under the same type of selecting process.