01996777
01-30-2002
Daniel Richard Krauss, Complainant, v. Stephen A. Perry, Administrator, General Services Administration, Agency.
Daniel Richard Krauss v. General Services Administration
01996777
January 30, 2002
.
Daniel Richard Krauss,
Complainant,
v.
Stephen A. Perry,
Administrator,
General Services Administration,
Agency.
Appeal No. 01996777
Agency No. GSA-RO4960010
Hearing No. 110-98-8358x
DECISION
INTRODUCTION
On September 7, 1999, Daniel Richard Krauss (complainant) timely filed an
appeal with the Equal Employment Opportunity Commission (the Commission)
from a final agency decision (FAD) dated August 12, 1999, 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. � 2000e et seq.
The Commission hereby accepts the appeal in accordance with 29 C.F.R. �
1614.405.
ISSUE PRESENTED
The issue on appeal is whether the agency properly determined that
complainant had failed to prove that the agency discriminated against
him based on sex and reprisal when he was not selected for a position
to which he had applied.
BACKGROUND
The record reveals that complainant, a Telecommunications Specialist,
GS-12, at the agency's Atlanta, Georgia facility, filed a formal EEO
complaint with the agency on May 23, 1996, alleging that the agency
had discriminated against him on the bases of sex (male) and reprisal
(status and actions as an EEO Counselor) when, on January 5, 1996,
he was not selected for the position of Computer Specialist, GS-13
(the Position). At the conclusion of the investigation, complainant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ). Following a hearing, the AJ
issued a decision finding no discrimination.
The AJ made the following findings of fact. Complainant, in addition
to his duties as a Telecommunications Specialist, acted as a part-time
collateral duty EEO Counselor. The Selecting Official (SO) assumed her
supervisory position in the Atlanta, Georgia office on January 8, 1995.
On January 17, 1995, complainant, as part of his EEO Counselor duties,
sent a letter to the SO's immediate supervisor regarding reported
episodes of sexual harassment in the Huntsville, Alabama office, which
was under the SO's supervision. The SO was aware of the situation and was
attempting to address it when complainant made his report. She believed
that the report was �ill timed� in that she had already scheduled a trip,
on the day after the date of the report, to that office to investigate
the situation. The SO was �admittedly upset� about complainant bypassing
her with his report, was irritated that it occurred so soon after she
had become the supervisor, and was �disappointed in the manner in which
the complainant had handled the complaint.�
In the fall of 1995, the agency advertised a vacancy for the Position.
Complainant, due to an administrative error on a previous job vacancy
announcement, was entitled to �advance consideration� for the Position,
which meant that he was referred to the SO for consideration before any
other names were sent to the SO for consideration. If the SO decided not
to choose the candidate with advance consideration, a written rationale
justifying the non-selection had to be provided. The SO was advised in
October 1995 that complainant was to receive advance consideration for
the Position, and she convened a selection panel (the Panel) to assist
her in filling the vacancy. The SO prepared the interview questions
for the Panel and also sat in on the interview. After complainant was
interviewed, it was the conclusion of the SO, after taking into account
the Panel's input, that she was not going to select complainant for
the Position. She prepared a memo, dated December 1, 1995, detailing
her reasons for the non-selection and sent it on for review by higher
management officials, as required. Her non-selection of complainant was
approved by higher management officials on January 5, 1996. Subsequently,
two other candidates were interviewed by the Panel and the SO, and the
Selectee (female) was chosen for the Position.
The AJ concluded that complainant established a prima facie case of sex
discrimination because he belonged to a protected class, was qualified and
considered for the Position, and, after his non-selection, the Selectee,
not in his protected class, was selected for the Position. The AJ further
concluded that the agency articulated legitimate, nondiscriminatory
reasons for its actions. The AJ found that the SO did not believe that
complainant was the best candidate from a technical standpoint for the
Position. The SO detailed her reasons for complainant's non-selection
in her December 1, 1995 memo, in which she found that he did not have
the technical expertise she believed the Position needed, given the
changing nature of the way the agency was carrying out its mission,
and the reorganization and personnel turn over that was occurring.
The AJ found that complainant did not establish that more likely
than not, the agency's articulated reasons were a pretext to mask
unlawful discrimination or retaliation. In reaching this conclusion,
the AJ found that complainant had focused on the advance consideration
process and whether he should have received the Position under this
consideration method. He found that the SO �clearly believed that
complainant failed to sufficiently meet the technical standards needed
and sought by her at that time.� Complainant did not communicate his
technical expertise to the SO and the Panel in the interview process.
Based on this testimony and evidence, and on his finding that the SO had
�almost a fifty-fifty ratio� in selecting men and women for positions
where she was the Selecting Official, he found that complainant had
failed to prove he was discriminated against on the basis of his sex.
The AJ also concluded that complainant failed to establish a prima facie
case of discrimination based on reprisal. Specifically, the AJ found that
complainant had established that he participated in the EEO process as
an EEO Counselor, and had prepared a report in January 1995 regarding
alleged sexual harassment in an office under the SO's supervision.
Complainant also established that he had been subjected to an adverse
employment action by his non-selection in January 1996 for the Position.
The AJ found, however, that he failed to demonstrate that there was
a causal connection between his actions as an EEO Counselor and his
non-selection for the Position. He noted that the SO knew about the
report and was upset and irritated by it, but that she was not upset
about the nature of the report but rather about its timing and the fact
that complainant sent it to her supervisor. The AJ noted that there
were eleven months between the two occurrences, and found that this was
an �insufficient closeness in time or temporal relationship between
the two events to support a retaliation finding.� He stated that no
other causal connection had been presented and found that complainant's
protected activity was not the cause of his non-selection. The agency's
final decision implemented the AJ's decision.
On appeal, complainant contends that the AJ erred in his findings and
conclusions. He argued that the SO's testimony was contradictory, that
it showed she had violated various agency regulations and that the only
conclusion possible was that she was trying to cover her discriminatory
intent in denying complainant the Position. He pointed to the testimony
of two other witnesses and argued that their testimony showed that the
SO had violated regulations, and that he had been �fully qualified and
technically competent to do� the Position.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
The Commission finds that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. We find that complainant failed to present evidence that
the agency's action was motivated by discriminatory animus toward
complainant's sex or was in retaliation for complainant's EEO activity
in his role as an EEO Counselor. 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 agency's final decision.
CONCLUSION
Accordingly, the decision of the agency to implement the AJ's decision
was proper and 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
January 30, 2002
__________________
Date