01976533
05-14-1999
James D. Boatman, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
James D. Boatman, )
Appellant, )
) Appeal No. 01976533
v. ) Agency No. 96-57011-001
) Hearing No. 360-96-8764X
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency concerning his
allegation that the agency violated 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 (ADEA), as amended, 29 U.S.C. �621 et seq. The Commission
hereby accepts the appeal in accordance with EEOC Order No. 960,
as amended.
The issue presented is whether appellant proved, by a preponderance of
the evidence, that he was discriminated against because of his national
origin (Dutch/Irish/American Indian), and age (45) when he was not
selected for the position of Operations Research Analyst (ORA), GS-13,
at the agency's Mine Warfare Command, Corpus Christi, Texas.
At the time of his complaint, appellant was employed by the agency as
an Environmental Engineer, GS-12. Believing that he was a victim of
discrimination, appellant sought EEO counseling and later filed a formal
EEO complaint dated October 3, 1995, wherein he alleged that he had been
discriminated against as stated above.
The agency complied with all procedural and regulatory prerequisites,
and on May 23, 1997, the EEOC Administrative Judge (AJ), determining
that there was no issue of material fact in dispute, issued a Recommended
Decision (RD) without a hearing, finding no discrimination on any basis.
The AJ found that appellant failed to establish a prima facie case of
discrimination, because he could not show that he was qualified for the
ORA position in the first place. In this regard, the Vacancy Announcement
(VA) stated that in addition to meeting the basic entry qualification
requirements, �applicants must have one year specialized experience
equivalent to at least the GS-12 grade level.� Because appellant lacked
this specialized experience, as opposed to a �generalized knowledge of
mine warfare� which he had gained from an engineering course he had taken,
his name was not forwarded to the selecting official. In contrast, the
selectee (ST) had more than three years of such specialized experience.
Subsequently, the agency adopted the RD as its own final decision.
On appeal, appellant's attorney contends that the AJ's RD was in error
because the AJ failed to compel the agency to answer appellant's discovery
questions, such as why the position requirements were changed when the
job was reannounced and the new VA dated January 11, 1995, was rewritten
to require specialized experience. He also questioned whether the ST met
the basic educational requirements of the position and whether the agency
failed to follow the usual procedures when a position required a college
degree. In response, the agency contends that appellant's comments in
support of his appeal fail to show how he was qualified for the position
and how he was not selected because of his national origin or age.
After a careful review of the record in its entirety, the Commission
finds that the AJ's RD summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We therefore discern no
basis to disturb the AJ's finding of no discrimination.
Concerning appellant's contentions on appeal, we note that while appellant
might see evidence of discriminatory bias in the fact that the VA was
rewritten to require specialized experience, it is not his prerogative
but rather the agency's to choose a system for evaluating job candidates
for a particular position, as long as the system is applied in a
nondiscriminatory manner. See Loeb v. Textron, Inc., 600 F.2d 1003, 1012,
n.6 (1st Cir. 1979). It is uncontroverted that the added requirement of
specialized experience affected all the candidates in the same manner,
and appellant has offered no evidence to rebut this conclusion. Then,
too, appellant had, in fact, been rated ineligible before the rewritten
VA had been issued, on the same grounds that he lacked the necessary
specialized experience. While this requirement of specialized experience
did not appear in the earlier VA under which appellant had applied, such
an omission does not preclude its consideration in the selection process
where, as here, it was applied uniformly without discriminatory intent.
Hodge v. Dept. of Transportation, EEOC Request No. 05910048 (January
25, 1991).
In addition, the rating official who found appellant ineligible denied
that age or national origin was a factor in her rating of the applicants,
and the recommending official agreed with her rating of appellant when he
reviewed the latter's qualifications at the rating official's request.
Appellant has offered no evidence in rebuttal here as well. Finally the
record indicates that the ST did have a four-year college degree and
had taken all the undergraduate courses required by the VA.
It is accordingly the decision of the EEOC to AFFIRM the agency's final
decision in this matter.
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:
May 14, 1999
_____
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations