01971809
03-05-1999
Clarence J. Weahkee, Appellant, Bruce Babbitt, Secretary, Department of the Interior, (Bureau of Indian Affairs) Agency.
Clarence J. Weahkee v. Department of the Interior
01971809
March 5, 1999
Clarence J. Weahkee, )
Appellant, )
)
) Appeal No. #01971809
) Agency No. BIA-94-008
) Hearing No. 100-95-7743X
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
(Bureau of Indian Affairs) )
Agency. )
)
DECISION
Appellant filed a timely appeal with the Equal Employment Opportunity
Commission ("Commission") from the final decision of the Department
of the Interior, Bureau of Indian Affairs ("agency"), concerning his
allegation that the agency violated Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 C.F.R. � 621 et seq. In his complaint, appellant alleged that the
agency discriminated against him on the bases of sex (male) and age
(D.O.B. 3/27/37), when: (1) in September 1993, he was not selected to
the position of Equal Employment Specialist, GM-260-13 ("position #1");
and (2) in August 1993, he was not selected to the position of Equal
Employment Specialist, GS-260-11/12/13 ("position #2"). This appeal is
accepted by the Commission in accordance with EEOC Order No. 960.001.
Following an investigation of this complaint, appellant requested
a hearing before an Equal Employment Opportunity Commission ("EEOC")
administrative judge ("AJ"). Pursuant to appropriate EEOC regulations,
the AJ issued findings of fact and conclusions of law from the bench.
On September 23, 1996, the AJ issued a Recommended Decision (RD) finding
no discrimination.
With respect to Position #1, the AJ found that appellant established a
prima facie case of discrimination on the basis of sex. However, the AJ
found that appellant failed to establish that the agency's legitimate,
non-discriminatory reasons for not selecting him were pretextual.
Appellant argued that he was more qualified than the selectee ("S1"),
that the selectee's educational qualifications were missing from her
application, and that she was preselected to the position because she is
female, and was a member of the selecting official's ("SO1's") staff.
Appellant also argued that the lack of interviews in the selection
process suggested favoritism and pre-selection. However, the AJ
found that even absent the missing application materials, there was
no evidence suggesting that appellant's qualifications were manifestly
superior to S1's. The AJ also found that the agency determined not to
conduct interviews so as not to disadvantage non-local candidates, and
because the differences in qualifications were evident from the written
applications. Furthermore, agency policies indicate that interviews
were optional. The AJ determined that while evidence suggests that SO1
may have been predisposed to select S1 because of his high regard for
her capabilities, and that her application as received may have been
incomplete, the record does not suggest that SO1's selection of S1
was motivated by gender discrimination. Moreover, the AJ found that
any evidence of pre-selection did not discredit the agency's reasons
for selecting S1 because she was selected based on her qualifications,
rather than her sex, a basis prohibited by Title VII.
The AJ found that appellant failed to establish a prima facie case
of age discrimination with respect to position #1. Assuming that
appellant had established a prima facie case of age discrimination, the
AJ found that appellant failed to establish that the agency's legitimate,
non-discriminatory reasons for not selecting him were pretextual. The AJ
found that the agency selected S1 because of her superior qualifications,
and that appellant failed to show that age was a motivating factor in the
selection process. The AJ also found that any evidence of pre-selection
did not discredit the agency's reasons for selecting S1 because she
was selected based upon her qualifications, and not her age, a basis
prohibited by the ADEA.
Regarding position #2, the AJ found that appellant established a prima
facie case of discrimination based on sex and age. However, the AJ
found that appellant failed to establish that the agency's legitimate,
non-discriminatory reasons for not selecting him were pretextual. The AJ
found that the selectee ("S2") was highly qualified for position #2,
and that appellant failed to prove that his qualifications were superior
to S2's. Furthermore, the AJ found that although evidence exists that one
of the selecting officials ("SO2") may have been pre-disposed to promote
S2's selection because of their mutual experience, the record does not
support that the agency's selection of S2 was made with discriminatory
animus. Also, the AJ found that the decision not to interview candidates
was discretionary, and did not violate agency policy. Additionally,
the AJ determined that S2's supplemental questionnaire response was not
incomplete. Finally, the AJ found that the record did not contain any
persuasive evidence that the agency's decision to select S2 was based
on either sex or age; rather, the agency's selection decision was based
on S2's qualifications. On October 19, 1996, the agency issued a final
decision, adopting the AJ's finding of no discrimination. It is from
this decision that appellant now appeals.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that the AJ's recommended decision sets forth the relevant facts,
and properly analyzes the appropriate regulations, policies, and laws
applicable to appellant's complaint as a disparate treatment claim.
Therefore, the Commission discerns no basis in which to disturb the AJ's
finding of no discrimination. Accordingly, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the agency's final
decision finding no discrimination.
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. � 1614.604(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. 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 (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 civil action. Both the request and
the civil action must be filed within the time as stated in the
paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
March 5, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations