James T. Judilla, Appellant,v.John H. Dalton, Secretary, United States Department of the Navy, Agency.

Equal Employment Opportunity CommissionNov 13, 1998
01970987 (E.E.O.C. Nov. 13, 1998)

01970987

11-13-1998

James T. Judilla, Appellant, v. John H. Dalton, Secretary, United States Department of the Navy, Agency.


James T. Judilla v. United States Department of the Navy

01970987

November 13, 1998

James T. Judilla, )

Appellant, )

)

v. ) Appeal No. 01970987

) Agency No. DON-95-65885-030

John H. Dalton, )

Secretary, )

United States Department of the Navy, )

Agency. )

_______________________________________)

DECISION

Appellant timely appealed the agency's final decision that it had not

discriminated against him in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq. Appellant alleged

he was discriminated against based on his race (Asian), national origin

(Philippines), and reprisal (prior EEO activity) when on May 22, 1995,

he was informed that he was not selected for the position of Supervisory

General Supply Specialist, GS-2001-11, which was advertised under merit

promotion Announcement No. T95-016. The Commission accepts this appeal

in accordance with the provisions of EEOC Order No. 960.001.

The record reveals that appellant filed his formal complaint with the

agency on August 14, 1995, alleging that the agency had discriminated

against him as referenced above. The agency accepted the complaint and

conducted an investigation. At the conclusion of the investigation,

appellant requested a hearing before an administrative judge (AJ).

Thereafter, the agency moved for an entry of Findings of Facts and

Conclusions of Law without a hearing. After a review of the investigative

file, a review of the parties' statements and relevant law, the AJ,

finding no genuine issues as to any material fact in dispute, issued

a recommended decision (RD) without a hearing pursuant to 29 C.F.R. �

1614.109(e)(3), finding no discrimination. On March 19, 1996, the agency

adopted the RD and issued a FAD finding no discrimination. It is from

this decision that appellant now appeals.

After a careful review of the record, the Commission finds that the

AJ's recommended decision correctly summarized the relevant facts and

referenced the appropriate regulations, policies, and laws. We find,

as did the AJ, that appellant failed to establish a prima facie

case of retaliation. In addition, we find that although appellant

established a prima facie case of race and national discrimination

that the agency articulated credible nondiscriminatory reasons for its

action. Specifically, the agency stated that the position involved ship

installation which the selectee had experience in, while appellant had

no such experience, but had aircraft experience. The agency also stated

that "the selectee more effectively illustrated her ability to interact

with problems, as well as her goal-oriented systematic approach to work."

In order to establish pretext, appellant argued that the agency did not

properly consider his supervisory experience and ignored his education.

The AJ found that neither of these arguments addressed the components

of their respective applications for the position that the agency

identified as the distinction between appellant and the selectee.

Therefore, we find, as did the AJ, that appellant has not established

that the reasons stated by the agency were not the true reasons for the

agency's action. Finally, the record does not contain, and appellant

has not suggested, any evidence to raise a genuine issue of material

fact as to pretext.

On appeal, appellant reiterated his claim that his education and

experience was ignored by the agency in its nonselection of the appellant

for the position. Appellant also provided an unsworn letter by a

co-worker in support of his claim. However, we find no basis to disturb

the AJ's finding of no discrimination in this case. Accordingly, it is

the decision of the Commission to AFFIRM the agency's final decision in

this matter and find that appellant failed to prove, by a preponderance

of the evidence, that she was discriminated against because of his race,

national origin, or retaliation for his prior EEO activity.

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. �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 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 13, 1998

DATE Ronnie Blumenthal, Director

Office of Federal Operations