01A03721
02-28-2002
James D. McSweeny, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
James D. McSweeny v. Department of Agriculture
01A03721
February 28, 2002
.
James D. McSweeny,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A03721
Agency No. 960221
Hearing No. 260-98-7293X
DECISION
Complainant timely initiated this appeal from the agency's final decision
(FAD) concerning his equal employment opportunity complaint of unlawful
employment discrimination in violation of the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. � 621 et seq., and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges in his complaint that he was discriminated against
by the agency on the basis of age (date of birth March 9, 1950) and
disability (chronic rhinitis, chronic fatigue, asthma, and sleep disorder)
when he was denied training and travel opportunities within the five years
preceding February 16, 1996.<1> At the conclusion of the investigation,
complainant received a copy of the investigative report and requested a
hearing before an EEOC Administrative Judge (AJ). Following a hearing,
the AJ issued a decision finding no discrimination. The AJ found
that complainant had failed to establish a prima facie case of age or
disability discrimination; that the agency had articulated legitimate,
nondiscriminatory reasons for the denials at issue; and that the evidence
did not show that the agency's proffered reasons were pretextual.
The agency subsequently implemented the AJ's decision in its FAD.
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 Bd., 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).
We note that, assuming for purposes of this appeal that complainant
established a prima facie case of age and/or disability discrimination,
the AJ's finding that the agency articulated legitimate, nondiscriminatory
reasons for the denied training and travel requests was supported by
substantial evidence in the record. The agency official responsible for
the denials testified that complainant's requests to travel to training
sessions were denied because the cost for the travel and training was too
high, the subject matter of the requested training was not immediately
relevant to complainant's job assignment, and similar training was
available at the local university at a much lower cost. Furthermore,
the record shows that complainant has not successfully rebutted the
agency's proffer by �prov[ing] by a preponderance of the evidence that the
legitimate reasons offered by the [agency] were not its true reasons, but
were a pretext for discrimination.� Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 143 (2000). Complainant has failed to satisfy his
ultimate burden of persuading the trier of fact that he was unlawfully
discriminated against by the agency, see id., and the AJ's findings are
adequately supported by record evidence.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's decision summarized the relevant facts and referenced the
appropriate regulations, policies, and laws, and made findings supported
by substantial evidence in the record. Accordingly, we AFFIRM the
agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 28, 2002
Date
1 This complaint originally contained two other allegations, relating to
a leave incident in 1993 and the agency's 1995 placement of complainant's
position on an unfunded list, in addition to the allegation discussed in
this appeal. The complaint was dismissed by the agency. On appeal to
the Commission, the agency's dismissal of the travel and training claim
was reversed, while the other dismissals were affirmed, and the revived
claim was remanded to the agency for continued processing. McSweeny
v. Department of Agriculture, EEOC Appeal No. 01966818 (Mar. 6, 1998).