James Allison, Appellant,v.Daniel R. Glickman, Secretary, Department of Agriculture Agency.

Equal Employment Opportunity CommissionMar 3, 1999
01973454 (E.E.O.C. Mar. 3, 1999)

01973454

03-03-1999

James Allison, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture Agency.


James Allison, )

Appellant, )

) Appeal No. 01973454

v. ) Agency No. 940317

) Hearing No. 370-96-X3130

Daniel R. Glickman, )

Secretary, )

Department of Agriculture )

Agency. )

)

)

DECISION

Appellant timely initiated an appeal from a final agency decision

(FAD) concerning her/his equal employment opportunity (EEO)

complaint of unlawful employment discrimination on the bases of race

(African-American), sex (male), reprisal (prior EEO activity), and age

(DOB 6/11/37), 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.

Appellant alleges he was discriminated against when he was reassigned

from the San Francisco Region Office to the San Bernardino National

Forest. The appeal is accepted in accordance with EEOC Order No. 960.001.

For the following reasons, the agency's decision is AFFIRMED.

The record reveals that during the relevant time, appellant, a GS-434-12

Plant Pathologist, was employed by the agency's U.S. Forest Service

(�Service�) in the San Francisco Regional Office. At sometime in the

early 1990's, the Service began plans for reorganization which would

relocate most of its personnel from the regional offices to the field

offices. In late 1992, the plan for the San Francisco Regional Office was

finalized with all but one plant pathologist position being reassigned

to the field offices. In April 1993, appellant was informed that his

position was being reassigned to the San Bernardino National Forest.

Appellant expressed his desire to remain in the regional office, but

learned that his co-worker (�Selectee�) (Caucasian, female, under age 40)

was selected to remain in the regional office.

Believing he was a victim of discrimination, appellant sought EEO

counseling and, subsequently, filed a formal complaint on March 12, 1994.

At the conclusion of the investigation, appellant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). Following a hearing, the AJ issued a Recommended Decision

(RD) finding no discrimination. The AJ concluded that appellant

established prima facie cases of race, sex and age discrimination

because a similarly situated employee, Selectee, was allowed to remain

in the regional office instead of appellant. The AJ then concluded

that the agency articulated legitimate, nondiscriminatory reasons for

its actions, namely, that Selectee's skills were more in line with the

needs of the plant pathologist position within the regional office.

In her pretext analysis, the AJ found that appellant did not meet

his burden of proving discrimination based on race, sex or age by a

preponderance of the evidence. Specifically, the AJ found that while

appellant provided evidence which cast doubt of the agency's articulated

reasons, he ultimately failed to show that the agency's actions were

based on any prohibited motive.<1> The agency's FAD adopted the AJ's RD.

Appellant makes no new contentions on appeal, and the agency requests

that we affirm the FAD.

After a careful review of the record in its entirety, including the

statements submitted on appeal, the Commission finds that the AJ's

RD sets forth the relevant facts and properly analyzes the appropriate

regulations, policies and laws. Nothing proffered by appellant on appeal

differs significantly from the arguments presented at the hearing and

given full consideration by the AJ. Therefore, the Commission discerns

no basis upon which to overturn the AJ's finding of no discrimination

in this matter. In this regard, the AJ made specific credibility

findings which are entitled to deference due to the AJ's first-hand

knowledge, through personal observation, of the demeanor and conduct

of the witnesses. See Esquer v. United States Postal Service, EEOC

Request No. 05960096 (September 6, 1996); Willis v. Department of the

Treasury, EEOC Request No. 05900589 (July 26, 1990). Accordingly, it

is the decision of the Equal Employment Opportunity Commission to AFFIRM

the agency's final decision which adopted the AJ's finding of no sex or

reprisal discrimination.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

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 the

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 the 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 the 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 the 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:

March 3, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations1 Appellant attacked

the agency's reasons by providing evidence

concerning union seniority procedures, unsound

business decisions, and preselection. However,

none of these are per se violations of the

aforementioned statutes. See Burton v. Department

of the Navy, EEOC Request No. 05950515 (Sept. 19,

1996); Jenkins v. Department of the Interior,

EEOC Request No. 05940284 (Mar. 3, 1995);

McAllister v. United States Postal Service,

EEOC Request No. 05931038 (July 28, 1994).