05960344
10-16-1998
Dennis L. Fodale, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency,
Dennis L. Fodale v. Department of Health and Human Services
05960344
October 16, 1998
Dennis L. Fodale, )
Appellant, )
)
v. ) Request No. 05960344
) Appeal No. 01945060
Donna E. Shalala, ) Agency No. FDA-393-92
Secretary, ) Hearing No. 230-94-4019X
Department of Health and Human )
Services, )
Agency, )
)
DECISION ON REQUEST TO RECONSIDER
INTRODUCTION
On March 15, 1996, appellant timely initiated a request to the Equal
Employment Opportunity Commission to reconsider the decision in Dennis
L. Fodale v. Donna E. Shalala, Secretary, Department of Health and
Human Services, EEOC Appeal No. 01945060 (February 7, 1996), received
by appellant on February 16, 1996. EEOC regulations provide that the
Commission may, in its discretion, reconsider any previous decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must
submit written argument or evidence that tends to establish one or more
of the three criteria prescribed by 29 C.F.R. �1614.407(c): that new and
material evidence was available that was not available when the previous
decision was issued, 29 C.F.R. � 1614.407(c)(1); that the previous
decision involved an erroneous interpretation of law or regulation, or
material fact, or a misapplication of established policy, 29 C.F.R. �
1614.407(c)(2); or that the decision is of such exceptional nature as to
have substantial precedential effects, 29 C.F.R. � 1614.407(c)(3). For
the reasons set forth herein, the Commission DENIES appellant's request.
ISSUE PRESENTED
Whether our previous decision erred in finding that appellant had not
established that the investigative branch (IB) director discriminated
against him on the bases of age (51) and reprisal by not selecting him for
the position of supervisory consumer safety officer (SCSO) in March 1992.
BACKGROUND
Appellant filed a complaint in which he set forth the above-referenced
allegation of discrimination. The agency investigated the complaint
and notified appellant of his right to request a hearing before
an EEOC administrative judge (AJ). After holding a hearing, the AJ
recommended a finding of discrimination. The agency rejected the AJ's
recommendation and issued a final decision of no discrimination, which
appellant appealed. The previous decision affirmed the agency's finding
of no discrimination, and appellant thereafter filed this request for
reconsideration.
The vacancy announcement specified the availability of the SCSO position
at the GS-12 or GM-13 level. The duties of the position included:
directing the activities of inspection teams; advising the IB director;
and drawing up long- and short-range work plans. Candidates for the
SCSO position were required to possess either a bachelor's degree that
included 30 semester hours of chemistry, biology or other relevant fields,
or a combination of study and work experience that included at least 30
semester hours in the aforementioned areas. The vacancy announcement
further stated that the applicants had to have at least one year of the
required experience at a level of difficulty equivalent to the next lower
grade in the Federal service. Applicants were rated on the following
knowledge, skill, and ability (KSA) factors: knowledge of the Food, Drug
and Cosmetic Act; ability to make decisions and recommend appropriate
actions to obtain industry compliance; knowledge of agency compliance
programs, policies and regulations; ability to communicate orally and in
writing; and ability to plan and organize work. Investigator's Exhibit
(IE) 9.
Appellant applied for the SCSO vacancy at the GS-12 and GM-13 levels.
His SF-171 indicated that he had been a GS-12 CSO between October
1977 and July 1991, at which time he was detailed to the position of
administrative officer.<1> The application indicates that appellant
has four associate degrees and had completed 148 academic credits.
Two of his degrees are in chemistry and biology. Block 24B of the
SF-171 lists appellant's experience as a journeyman CSO. In 13 lines,
he summarized his duties, responsibilities and accomplishments. On his
most recent performance appraisal, appellant received an overall rating
of excellent. On individual performance elements he was rated as follows:
evidence development - outstanding; report preparation - fully successful;
time utilization - excellent; manner of performance - excellent. IE 11,
p. 3. In addition, appellant received a commendation from a previous
IB director and other officials, and had been nominated for a regional
award by his colleagues, including the selectee. The personnel staffing
specialist responsible for reviewing the applications and preparing the
list of best-qualified candidates gave appellant a rating of 33 points.
IE 11, 14, 15, 17; Appellant's Hearing Exhibit (ApHE) 6, 7, 8, 10, 14.
The selectee applied for the SCSO vacancy only at the GS-12 level. The
personnel staffing specialist gave him a KSA rating of 27. The selectee
had been a CSO since August 1988. He listed his experience under Block
24B in a separate attachment. In ten pages, the selectee described, in
precise detail, the areas in which he conducted inspections, the names
of the companies that he investigated, the time frames during which those
investigations were conducted, and the outcomes of those investigations.
He too was given an overall rating of excellent on his most recent
performance appraisal. Unlike appellant, however, the selectee was rated
excellent on all four individual performance elements. IE 11, 14, 16.
The personnel staffing specialist forwarded the application packages
and the best-qualified list to the IB director, who served as the
selecting official. The IB director never saw the KSA ratings prepared
by the staffing specialist. The merit promotion policy in effect at
the time gave the selecting official the discretion to choose from
among the candidates listed on the best qualified list, or to make no
selection. The IB director notified appellant on March 23, 1992, that
he had chosen the selectee. He testified that the KSA criteria were
the sole basis for the selection. He also testified that he neither
interviewed the candidates nor took notes during the selection process.
He emphasized that his decision was based on his personal observations
of the candidates. The CB director concurred with the IB director, but
did not discuss the selection process with him. The staffing specialist
testified that she found nothing improper about a GS-11 being chosen
over a GS-12. IE 5, 8, 10, 11, 14, 17; Hearing Transcript (HT)82-83,
94-95 556-57, 586.
The IB director stated that he chose the selectee because he: interacted
well with others; was quick-minded and learned fast; had a good technical
background; grasped different concepts easily; showed initiative and
was a self-starter; was a people person; and had a good rapport with
others. He reiterated that performance appraisals were not factors of
consideration, per se, and that the selectee had amply demonstrated the
leadership traits that he was looking for in a SCSO. He noted that the
selectee demonstrated leadership potential early in his career by becoming
the lead investigator on a number of complex inspections. The selectee's
SF-171 lists those inspections in the attachment to block 24B. The IB
director testified that he was impressed with the selectee's bachelor
of science degree in microbiology, as well as his rapid rise through
the ranks. He emphasized that, even though the selectee's tenure
was relatively short, the selectee had no trouble identifying legally
significant issues, and was so good at it that he became a resource to
the other investigators. He also emphasized that the selectee was good
at setting priorities and devising new approaches. As an example, the
IB director cited the tripling of import detentions within two years
that resulted from the selectee's initiative in developing a unique
cooperative with the Customs Service. In addition, he testified that
the selectee's written reports were very tight, concise work products
that were relevant to the points being made. The IB director reiterated
that it was not difficult to choose the selectee over appellant, and that
the selectee moved quickly into the job, attaining a promotion to GS-13
as soon as he was eligible. IE 6, 16; HT 95-98, 124-25, 140, 147-48,
151-54, 260-61, 286-89, 294, 299-300.
In addition to touting the selectee's virtues, the IB director cited
what he characterized as appellant's performance deficiencies as the
other reason for not selecting him. The IB director stated in his
affidavit that appellant: was not a team player; was poorly organized
and slow; lacked flexibility and creativity; was not very productive;
did not delegate responsibilities well; lacked focus; could not
distinguish between significant and insignificant matters; failed to
communicate effectively; rewrote inspection and investigation reports
on numerous occasions; had difficulty seeing alternatives and options;
and had difficulty accepting defeat when others got what he wanted.
He stated that this assessment was based on his personal observations
of appellant over a period of 20 years, and on having read between 50
and 60 of appellant's reports. He testified that appellant tended to
operate by rote, rather than by extrapolating and synthesizing ideas.
The IB director emphasized that appellant took an inordinately long time
to write reports, and that he was constantly rewriting those reports.
In particular, the IB director emphasized that many of appellant's reports
were sloppy and disorganized, and that they frequently contained exhibits
that were irrelevant to the matter being investigated. He noted that
in many reports, critical evidence was either not present or difficult
to find. He also noted appellant's frequent misspellings and poor use
of grammar. IE 6, 15; Agency Hearing Exhibit (AgHE) 1; HT 45-47, 103,
111-15, 126-28, 260-62, 277-79, 299-304, 307.
The AJ found that appellant had established a prima facie case of age
discrimination and reprisal by showing that the selecting official,
who he named in a prior EEO complaint, passed him over in favor of
a 26-year-old selectee. The AJ also found that the agency failed
to articulate a legitimate and nondiscriminatory reason for choosing
the selectee. The AJ based his recommendation on two considerations.
First, the AJ determined that appellant's experience "far exceeded"
that of the selectee. In particular, the AJ pointed out that, while the
selectee had completed 60 semester-hours in pursuit of a B.S. degree in
Microbiology, appellant had accumulated 148 semester-hours in pursuit
of four associate degrees. The AJ also noted that both appellant and
the selectee received performance ratings of "excellent" during the
rating period preceding the selection process, and that appellant was
rated at the GS-12 level while the selectee was rated at the GS-11 level.
Second, the AJ characterized the IB director's assessment of appellant's
performance as "subjective and stale." He noted that statements from
management and non-management officials "overwhelmingly disagreed with
the selecting official's assessment of appellant's capabilities."
Contrary to the AJ, the previous decision found that the agency had
articulated a legitimate and nondiscriminatory reason for not selecting
appellant, and that appellant failed to establish that this reason
was a pretext for either age discrimination or reprisal. The previous
decision found that, while appellant had a longer tenure with the agency
as well as previous supervisory experience, neither length of tenure
nor past supervisory experience was a rating factor for the position.
The previous decision also found that appellant's qualifications relevant
to the position were not so plainly superior to those of the selectee
as to compel a finding of pretext. The decision noted that while both
candidates received performance ratings of "excellent," appellant's
rating covered a three-month period of service as a compliance officer
whereas the selectee's rating covered a full year as a compliance officer.
Appellant had been detailed to the position of administrative officer for
the remaining nine months of the rating period. The decision indicated
that appellant's previous performance rating as a compliance officer
had been "fully successful." Finally, the decision noted the selecting
official's subjective assessment that the selectee was more of a "people
person" and "self-starter" than appellant.
In his request for reconsideration, appellant disputes the previous
decision's finding that his qualifications were not so superior to those
of the selectee as to compel a finding of pretext. In particular, he
argues that the previous decision misstated material facts of the case.
He also reiterates that the IB director's negative comments about
his performance were, "illegitimate, subjective, undocumented, and
contradicted by management and non-management alike."
The agency responds that appellant's arguments reflect his disagreement
with the outcome of the previous decision, as opposed to the existence
of material factual errors in that decision. It points out that, even
if the previous decision misstated some of the details of the case, such
misstatements do not defeat the ultimate conclusion of no discrimination.
ANALYSIS AND FINDINGS
The Commission may, in its discretion, reconsider any previous decision
when the party seeking reconsideration submits written argument or
evidence which tends to establish that any of the criteria in 29
C.F.R. � 1614.407(c) are met. The Commission's scope of review on a
request for reconsideration is narrow. Lopez v. Department of the Air
Force, EEOC Request No. 05890749 (September 28, 1989). In order for
a case to be reconsidered under 29 C.F.R. � 1614.407(c), the request
must contain specific information which meets the requirements of
this regulation. A request for reconsideration is not merely a form of
second appeal. Regensberg v. United States Postal Service, EEOC Request
No. 05900850 (September 7, 1990). Instead, the request for reconsideration
is an opportunity for an appellant to submit newly discovered evidence,
not previously available; to establish substantive legal error in
a previous decision; or to explain how the previous decision is of
such an exceptional nature as to have effects beyond the case at hand.
Lyke v. United States Postal Service, EEOC Request No. 05900769 (September
27, 1990).
To prevail in a claim of age discrimination or reprisal, appellant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-05 (1973). Under the ADEA, however, appellant's ultimate burden is
to establish that his age was a determining factor in his nonselection
for the SCSO position. Johnson v. United States Postal Service, EEOC
Request No. 05910560 (September 17, 1991); Loeb v. Textron, Inc., 600
F.2d 1003, 1019 (1st Cir. 1979).
Appellant must initially establish a prima facie case by presenting
evidence which, if unrebutted, would support an inference that the
agency's actions resulted from discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Both the AJ and the previous
decision agreed that appellant established a prima facie case of
age discrimination and reprisal with respect to his nonselection for
the SCSO position in March 1992. Because these decisions diverged so
substantially in the remaining prongs of the McDonnell Douglas analysis,
however, we find it necessary to set forth a complete discussion of the
prima facie case.
Appellant may establish a prima facie case of age discrimination with
respect to his nonselection by showing that he is at least 40 years
old, that he applied for a position for which he was qualified, and
that he was not selected. Silva v. United States Postal Service, EEOC
Request No. 05931164 (May 12, 1994); Keyes v. Secretary of the Navy,
853 F.2d 1016, 1023 (1st Cir. 1988). It is not necessary for appellant
to show that a comparative individual outside of his protected age group
was treated differently. O'Connor v. Consolidated Coin Caters Corp.,
517 U.S. 308, 311-12 (1996); Daniels v. Department of the Air Force,
EEOC Petition No. 03970009 (July 31, 1997). In this case, appellant
established a prima facie case of age discrimination in that he was
51 years old when he applied, he was one of only three candidates who
made the best-qualified list, and the IB director chose a 26-year-old
applicant with far fewer years of service. The record further reflects
that appellant unsuccessfully applied for this position six times between
1988 and 1992. Appellant was on the best qualified list for every one
of those vacancies, and in the two vacancies that occurred in 1990,
he was the sole applicant. Nevertheless, the IB director, who was the
selecting official each time, passed over him. In the two vacancies
for which appellant was the only applicant, the IB director canceled
the vacancy announcement and readvertised the position. IE 4, 13, 19.
Where reprisal is at issue, appellant may establish a prima facie case
of reprisal by showing that he engaged in protected EEO activity, that
the official identified in his complaint was aware of that activity;
and that he was subjected to an adverse action at such a time or in
such a manner as to support a causal connection between the two events.
Frye v. Department of Labor, EEOC Request No. 05940764 (December 15,
1994); Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318 (D. Mass), aff'd, 545 F.2d 222 (1st Cir. 1976).
Appellant established a prima facie case of reprisal in that he filed
three previous EEO complaints against the IB director. One of those
complaints involved another nonselection for the SCSO position, which
took place in June 1991, less than a year before the nonselection at
issue in the case now before us.<2> In settlement of another complaint,
the IB director was ordered to sign a letter of apology to appellant,
and to approve appellant for criminal investigator training, both of
which he did under protest. IE 6; ApHE 1-3; AgHE 1.
The agency must now articulate a legitimate and nondiscriminatory reason
for not selecting appellant for the SCSO position which rebuts the
presumption of age discrimination and reprisal created by the prima facie
case. Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). The AJ found that the IB director's only justification
for bypassing appellant was the selectee's superior qualifications and
appellant's performance deficiencies. He then concluded that the agency
failed to articulate any legitimate and nondiscriminatory reasons for
choosing the selectee over appellant. In making this finding, the AJ
appears to have placed the burden on the agency to prove that it did
not discriminate against appellant. This is improper without direct
evidence of discrimination, which is clearly absent in this case.
See EEOC Revised Enforcement Guidance on Recent Developments in
Disparate Treatment Theory, EEOC Notice No. 915.002 (July 7, 1992);
EEOC v. Alton Packaging Corp., 901 F.2d 920, 923-25 (11th Cir. 1990).
It is well settled that in a circumstantial evidence case such as this,
the agency's only obligation is to state the reasons for its action.
The IB director clearly gave two reasons for not selecting appellant: the
selectee's superior qualifications for the SCSO position and appellant's
performance problems. Both of these reasons are ostensibly legitimate
and nondiscriminatory.
Appellant now has the burden of establishing that the agency's articulated
explanation was a pretext for discrimination. He must present enough
evidence to show that it is more likely than not that age discrimination
or reprisal was the real reason that the IB director picked the selectee
to be the SCSO in March 1992. Burdine, 450 U.S. at 256; St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Pavelka v. Department of the
Navy, EEOC Request No. 05950351 (December 14, 1995). With this in mind,
we now examine the AJ's reasons for finding discrimination.
The AJ appears to have concluded that appellant's qualifications were
plainly superior to those of the selectee, which, if true, would be a
compelling indicator of pretext. Bauer v. Bailar, 647 F.2d 1037, 1048
(10th Cir. 1981). The record, however, does not support such a finding.
While appellant may have had a much longer tenure than the selectee, the
selectee had clearly demonstrated that he had the leadership capabilities
and people skills desired by the IB director. The IB director testified,
without contradiction, that the selectee became the lead investigator in
several complex inspections involving different products and devices, that
the selectee initiated a cooperative program with the Customs Service that
tripled the number of import detentions, and that the selectee came to be
relied upon by other investigators as a resource. The district director
corroborated the IB director's testimony, noting that since the selectee
became the SCSO, import operations improved substantially. HT 435-36.
As to their educational backgrounds, the vacancy announcement specified
that the educational requirement for the position could be satisfied by
either a bachelors degree or a work-study combination that included at
least 30 semester-hours of relevant course work. Appellant clearly had
accumulated over twice as many credits as the selectee. The selectee,
however, had completed upper level courses in pursuit of his bachelor's
degree, while appellant only completed lower level courses. Appellant has
not shown that his additional course work or degrees, by themselves, gave
him an edge over the selectee with respect to educational background.
Both candidates received ratings of "excellent" on their most recent
performance evaluations. The fact that appellant was rated as a GS-12
while the selectee was rated as a GS-11 was not dispositive because the
IB director's reliance on the performance evaluations was minimal, and
because the vacancy announcement advertised the SCSO position at the GS-12
level as well as the GM-13 level. The fact that the personnel staffing
specialist had given the selectee a lower KSA rating than appellant is
likewise not a factor in this case because appellant and the selectee
both made the best-qualified list and the IB director never saw the
candidates' KSA ratings.
The record firmly establishes that appellant's qualifications were at
least equal, not plainly superior, to those of the selectee. The IB
director had the discretion to choose from among equally-qualified
candidates competing for the SCSO position, and his decision should not
be second-guessed by the reviewing authority without evidence of unlawful
motivation. Burdine, 450 U.S. at 259; Jenkins v. Department of Interior,
EEOC Request No. 05940284 (March 3, 1995). To determine whether such
evidence of discriminatory motive exists, we must now examine the IB
director's second reason for not selecting appellant.
The IB director set forth twelve examples of what he characterized
as appellant's performance deficiencies, both in his affidavit and at
the hearing. Those examples can be roughly grouped into three areas:
report writing (low productivity, multiple rewrites); organizational
skills (poorly organized, slow, doesn't delegate well); and interpersonal
skills (not a team player, lacks flexibility and creativity, lacks focus,
can't communicate effectively, fails to distinguish significant from
insignificant matters, can't envision alternative courses of action,
can't accept criticism). In essence, the IB director stated that,
based on having personally observed appellant and reviewed his reports
over twenty years, he essentially found appellant's report writing,
organizational, and interpersonal skills deficient.
Subjective assessments such as these may demonstrate pretext and
therefore need to be more closely scrutinized. White v. Department of
the Army, EEOC Request No. 05930278 (February 25, 1994). On the other
hand, subjective criteria are frequently relied upon in promotions
to supervisory or management positions, and the use of such criteria
is not, in and of itself, an indicator of discriminatory motivation.
Page v. U.S. Industries, 726 F.2d 1038, 1053 (5th Cir. 1984). Appellant
would therefore not be able to establish the existence of discriminatory
animus merely by showing that the IB director's decision was unsound
from a business standpoint, unfair, or motivated by arbitrariness or
ill will. Patterson v. Department of the Treasury, EEOC Request No.
05950156 (May 9, 1996).
The record indicates that the IB director had expressed the aforementioned
concerns about appellant's performance as far back as 1989. In a
memorandum regarding a conversation between himself and appellant that
took place on June 7, 1989, the IB director stated that appellant had
difficulty generating work quickly, that he was not a team player, that
he had difficulty accepting defeat, that he lacked innovative ideas,
flexibility or creativity, and that he failed to communicate effectively.
ApHE 1. In a memorandum to the EEO compliance program manager dated
March 1, 1990, regarding one of the previous nonselections for the SCSO
position, the IB director stated that he had known appellant since
1972, that he had many opportunities to review appellant's work over
13 years, and was consequently familiar with appellant's performance.
He essentially made the same comments about appellant's performance
problems in this memorandum as he made in the earlier one. AgHE 3.
The record supports the IB director's criticism of appellant's writing
skills. As previously noted, the IB director indicated that appellant's
use of grammar was poor, and that there were frequent misspellings
in many of the reports that he submitted. HT 300. In one piece of
correspondence, for example, appellant referred to mental anguish as
"metal" anguish. HT 307. On the second element of his performance
appraisal, marked "report preparation," appellant received a rating of
only "fully successful." The IB director's supervisor, the CB director
testified that he found appellant's reports lengthy, redundant and
repetitive. HT 586. In addition, several grammatical and typographical
errors appeared in the SF-171 that appellant submitted for the SCSO
vacancy at issue. IE 14.
As to appellant's organizational and interpersonal skills, we disagree
that testimony from other witnesses disproved the IB director's assertions
in this regard. Appellant, appearing at the hearing pro-se, questioned a
compliance officer, the IB director's administrative assistant, a fellow
CSO, and the district director. He went through the twelve factors cited
by the IB director with each witness, asking, "do you agree that I am
not a team player," or, "do you agree that I lack flexibility," etc.
These witnesses generally responded with answers that differed from
those given by the IB director, particularly with respect to appellant's
interpersonal skills. These witnesses generally had positive things
to say about appellant. Unlike the IB director, however, none of these
witnesses was in appellant's chain of command and none had ever reviewed
his work products or his performance in general. HT 356-75, 377-78,
390, 478-81, 564-66. Moreover, other management witnesses confirmed
some of what the IB director had said. For example, the CB director,
when asked whether he believed appellant lacked focus, cited an occasion
on which appellant was asked a question and gave "a long dissertation, but
no answer." HT 600. The district director testified that appellant would
not have improved import operations the way the selectee did. HT 436.
While it is true that appellant had been nominated for a regional award
and was given several letters of commendation, this by itself, does not
undermine the IB director's assertion that appellant tended to think by
rote rather than synthesize and extrapolate. The IB director pointed
out that appellant was detailed to the position of administrative
officer in July 1991. In November 1991, the detail became permanent.
The IB director pointed out that appellant's tendency to accomplish
tasks by rote made him better suited for administrative functions.
The district director noted that appellant was promoted to GM-13 in 1992,
after he had served as a GS-12 position for a year. HT 437. Moreover,
the IB director acknowledged that appellant was a loyal, dedicated and
hard-working employee, and that he liked appellant personally despite
the fact that appellant had filed EEO complaints against him.
The fact remains, however, that appellant had unsuccessfully applied for
the SCSO position six times since 1988, and was passed over in favor of
someone half his age in his last bid for this position. As discussed
below, the circumstances under which the prior nonselections took place
do not reflect a pattern indicative of age discrimination or reprisal.
When appellant applied for the position in 1989, he was passed over in
favor of the individual who eventually became his immediate supervisor.
The district director interviewed the candidates and noted that
the supervisor presented better qualifications and did better in the
interview than appellant. HT 413-414. The IB director testified that the
supervisor had attended medical school and had worked in a pharmaceutical
company, and was therefore a much better candidate than appellant.
HT 280.
As previously noted, the IB director posted two vacancy announcements
for the position in 1990, but withdrew the vacancies when no one
other than appellant applied for the position, citing concerns about
appellant's performance that he had raised earlier. HT 296. The district
director concurred with the IB director's recommendation to withdraw
the announcements. HT 428. Appellant also filed a complaint on his
1991 nonselection, which resulted in a finding of no discrimination on a
request for reconsideration. See EEOC Request No. 05940686, infra n.2.
The selectee in that case had a masters degree, experience as a resident
agent, and experience with computers. HT 283, 424. When asked why he
made the selections that he made over the period in question, the IB
director replied that he was determined to reverse the trend toward
promoting people who were good technicians, but not good managers.
HT 288. The district director testified that he concurred in the
selections in 1989, 1991, and 1992, and that all of those who became
SCSOs had done well in the position. HT 433-35. Each one of these
prior nonselections was thoroughly supported by the record.
In sum, appellant has not established that his non-selection for the
SCSO vacancy in March 1992 resulted from a discriminatory or retaliatory
motive on the part of the IB director. The record in this case reflects
the IB director's genuinely held belief that appellant was not suited
to the position of SCSO.
CONCLUSION
After a review of appellant's request to reconsider, the agency's
response thereto, the previous decision, and the entire record, the
Commission finds that appellant's request fails to meet the criteria of
29 C.F.R. �1614.407(c). It is therefore the decision of the Commission
to DENY appellant's request. The decision of the Commission in EEOC
Appeal No. 01945060 finding no discrimination on the basis of age
or reprisal remains the Commission's final decision in this matter.
There is no further right of administrative appeal from a decision of
the Commission on a request for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
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.
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:
OCT 16, 1998
_______________ ______________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
1In November 1991, appellant's detail to the administrative officer
position became permanent.
2This earlier nonselection was processed all the way through the
reconsideration stage, and the Commission ultimately affirmed the
agency's final decision of no discrimination. Fodale v. Department of
Health and Human Services, EEOC Request No. 05940686 (July 7, 1995).