0120073390
02-04-2009
Eugene Jones,
Complainant,
v.
Erik K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073390
Hearing No. 410-2007-00080X
Agency No. 200105092006102179
DECISION
On July 25, 2007, complainant filed an appeal from the agency's June
29, 2007 final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of 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 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
At the time of the events giving rise to this complaint, complainant
worked as a Human Resources Assistant, GS-6, Human Resources Management
Service in Decatur, Georgia. On September 2, 2004, complainant filed an
EEO complaint alleging that he was discriminated against on the bases of
race (African-American), sex (male), and age (49) when, on or about May
10, 2006, management determined that complainant was not qualified for
the position of HR Assistant, and on or about May 27, 2006, management
did not select complainant for the position of HR Assistant under vacancy
announcement number ATL-06-03-046 JW.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on June 1, 2007 and issued
a bench decision on June 1, 2007.
The AJ found that 18 individuals applied for the position, including
complainant. Only two people qualified for the position: Candidate
1, a Caucasian female who is older than complainant and Candidate 2
(C2), an African-American female whose age is unknown. The AJ found
that complainant did not set forth a prima facie case of employment
discrimination based on age, race, or sex. Specifically, the AJ found
that complainant has not established that he was qualified for the
position of Lead Human Resources Assistant, GS-08, because he did not
have the requisite time-in-grade required for the position. The AJ noted
that complainant was a GS-06 attempting to apply for a GS-08 position.
The AJ also specifically found that complainant did not establish a
prima facie case of age discrimination insofar as the person that he
compares himself with, the selectee, is actually older than complainant.
The AJ then assumed arguendo that complainant had established a prima
facie case, and further found that the agency articulated a legitimate,
nondiscriminatory reason for its actions, namely, that complainant
did not have the specialized experience at the next lower grade level,
either at the agency or in the military, and did not qualify for the
position at issue. Therefore, the AJ found that he was not placed
on the "Cert list" or considered for the selection. The AJ found
that despite complainant's arguments and speculation, he did not meet
his burden of establishing pretext. The AJ found no discrimination.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
On appeal, complainant presents no new arguments. In reply, the agency
asks that we affirm its final order. 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).
An AJ's conclusions of law are subject to a de novo standard of review,
whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In this case, substantial evidence in the record supports the AJ's
finding that complainant has not established discrimination. There is
substantial evidence in the record to support the AJ's finding that the
agency articulated legitimate, nondiscriminatory reasons for its action
(complainant did not have the specialized experience at the next lower
grade level) and that complainant failed to establish pretext. Based on
a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the agency's final
order implementing the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 4, 2009
__________________
Date
2
0120073390
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120073390