01973938
11-13-1998
Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
James H. Armstrong,
Appellant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01973938
Agency No. DT-95-039
Hearing No. 360-95-8339X
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning his allegation that the agency discriminated against him on
the bases of race (African American), color (black) and age (48), when
his co-worker (CW) was noncompetitively promoted from a GS-07 to a GS-09,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. The Commission
hereby accepts the appeal in accordance with EEOC Order No. 960.001.
For the following reasons, the FAD is AFFIRMED.
At the time of the alleged discriminatory event, appellant was employed
as a Quality Assurance Specialist, GS-1910-07, for the Defense Logistics
Agency at Kelly Air Force Base, Texas. Believing that he was the victim
of discrimination, appellant sought EEO counseling and, thereafter,
filed a formal EEO complaint. The agency accepted the complaint for
investigation and complied with all of our procedural and regulatory
prerequisites. Subsequently, appellant requested a hearing before
an EEOC Administrative Judge (AJ), which was held on January 9, 1997.
On February 14, 1997, the AJ issued a Recommended Decision (RD) finding
no discrimination. In her RD, the AJ concluded that appellant established
a prima facie case of discrimination, but failed to show that the agency's
reasons for noncompetitively promoting CW were pretextual. Specifically,
the AJ reasoned that appellant failed to show that CW was promoted
for any reason other than the fact that his position was reclassified.
Thereafter, the agency adopted the RD and issued a FAD, dated April 2,
1997, finding no discrimination. It is from this agency decision that
appellant now appeals. On appeal, appellant asserts, among other things,
that the AJ's credibility determinations are not supported by the record.
The investigative record reveals that as the result of downsizing,
the agency was undergoing a reorganization. Accordingly, the agency
conducted desk audits for approximately 30% of its positions. The desk
audits resulted in a number of noncompetitive promotions, and in turn,
a number of reductions in grade. CW was serving as the supervisor of
the Stock Surveillance Branch. While CW assumed some of appellant's
former duties, there is no evidence that he and appellant had the same
responsibilities. In her affidavit, appellant's former first level
supervisor (S1), presented unrebutted testimony that she had attempted
to promote CW prior to the desk audits because his grade level was not
consistent with that of the other supervisors, who were ranked at the
GS-11 level.<1> Further, the Classification Specialist who conducted
the desk audit of CW's GS-7 position presented credible testimony that
she followed agency position classification guidelines in determining
that the position should be upgraded to the GS-9 level.
After careful review of the entire record, including appellant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, the Commission finds that the AJ's RD
sets forth the relevant facts, and properly analyzes the appropriate
regulations, policies and laws. The Commission discerns no basis to
disturb the AJ's finding. With particular reference to appellant's
contentions concerning the AJ's credibility determinations, we note that
in an administrative hearing where the motivation and credibility of
witnesses are critical, the credibility findings of the AJ are entitled
to great weight, unless there is substantial evidence in the record
to the contrary. See Anderson v. Bessemer City, North Carolina, 470
U.S. 564, 575 (1985); Wrenn v. Gould, 808 F.2d 493,499 (6th Cir. 1987).
In the instant record, the Commission finds no substantial evidence to
the contrary. Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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. Filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
___11/13/98___ ____________________________________
Date Ronnie Blumenthal, Director
Office of Federal Operations1While the RD lists S1 as African
American, the record reveals that she is Caucasian. However, the
Commission finds this error immaterial to a proper determination
of this case.