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