01981525
11-25-1998
Dennis M. Patterson, Appellant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Dennis M. Patterson v. Department of Energy
01981525
November 25, 1998
Dennis M. Patterson, )
Appellant, )
)
v. ) Appeal No. 01981525
) Agency No. DOE No. 97(37)WAPA
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from a final agency decision (FAD) concerning his
equal employment opportunity (EEO) complaint, alleging discrimination
on the bases of sex (male),<1> and age (41), 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.
The issues presented are whether appellant has proved, by a preponderance
of the evidence, that he was discriminated against on the basis of age
(41) when:
1. he was not selected for voluntary assignment to the Desert Southwest
Regional (DSW) Office as an Electronic Equipment Craftsman (EEC) after
he responded to an Interest Survey: and
2. the vacancy announcement (VA) for an EEC Apprentice Field position
for which he had applied at the Rocky Mountain Region(RMR) was canceled.
On appeal, appellant's attorney contends, as evidence of discrimination
concerning issue (1), that appellant was qualified for the position as
announced but that new experience requirements were then added during
the interview process which appellant lacked. Since the selectee (ST)
had this later added experience, appellant was disqualified for the
position, ostensibly on nondiscriminatory grounds, but in reality, such
grounds were a pretext to mask age discrimination. The agency did not
reply to appellant's contentions on appeal.
At the time of his nonselection and cancellation of the VA, appellant was
an EEC, WB-2619, at the agency's Loveland, CO facility. Believing that
he was the victim of discrimination, appellant sought EEO counseling and,
thereafter, filed the instant formal complaint on November 7, 1996.
The agency accepted the allegations and complied with all of our
procedural and regulatory prerequisites. Appellant did not request a
hearing; therefore, the agency issued a FAD, finding no discrimination.
Appellant now appeals the FAD.
In applying the analytical framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); and Loeb v. Textron, Inc., 600 F. 2d 1003 (1st
Cir. 1973) (applying the framework to cases of age discrimination),
we concur with the agency that appellant is unable to establish a prima
facie case of discrimination based on age respecting either issue.
Concerning his nonselection, we note that the agency ultimately
found appellant unqualified for the position, in that the selecting
official pointed out that he lacked the necessary microwave and radio
frequency experience. Although appellant's attorney protests that this
qualification was not found in the original VA, this Commission has
previously held that experience in an area not specifically cited in
a VA does not preclude its consideration in the selection process, as
long as it is applied uniformly to all candidates without discriminatory
intent. Hodge v. Department of Transportation, EEOC Request No. 05910048
(Jan. 25, 1991). Appellant has not shown that this qualification was not
applied to the ST, or that the ST lacked the necessary experience which
qualified him for the position. Similarly, appellant has presented no
evidence that the above-referenced job requirement was added in order
to disqualify himself on the basis of his age.
Next, concerning the agency's cancellation of the VA for an EEC apprentice
field position, appellant has not produced any evidence to show that this
was done with discriminatory intent. Nor has he shown that the agency's
reason for cancellation, to instead fill a position in Casper, Wyoming,
was a pretext for discrimination. In addition, because no selection was
made from the canceled VA, appellant fails to establish a prima facie
case here as well.
Accordingly, after a careful review of the entire record, including
arguments and evidence not specifically addressed in this decision,
the EEOC AFFIRMS the agency's final decision.
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. 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 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:
Nov 25, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1During the complaint investigation, appellant withdrew his issue of
discriminatory field training on the basis of sex.