Jeffrey W. Kenney, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 13, 2001
01A10791 (E.E.O.C. Jul. 13, 2001)

01A10791

07-13-2001

Jeffrey W. Kenney, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Jeffrey W. Kenney v. Department of Veterans Affairs

01A10791

July 13, 2001

.

Jeffrey W. Kenney,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A10791

Agency No. 98-1169

Hearing No. 150-98-8561X

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity

Commission (the Commission) from a final agency decision (FAD) concerning

his allegation that the agency discriminated against him in violation

of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �

2000e et seq. The appeal is accepted by the Commission in accordance

with 29 C.F.R. � 1614.405.

The issue presented is whether complainant proved that he was

discriminated against because of his sex (male) when he was not selected

for a Supervisory Veterans Claims Examiner (Team Leader) position on

February 9, 1998.

Complainant filed a formal complaint, dated March 26, 1998, raising the

above issue. Following an investigation, he was provided a copy of the

investigative file and notified of his right to request a hearing before

an EEOC Administrative Judge (AJ). Pursuant to complainant's request,

a hearing was held on August 18 and September 8, 2000. The AJ issued a

decision, on September 29, 2000, finding that complainant had not been

discriminated against with respect to his non-selection. On October 30,

2000, the agency issued a final order that accepted and fully implemented

the AJ's decision. It is from this decision that complainant now appeals.

In mid-1997, the agency began combining their Adjudication Division with

the Veterans Services Division in order to form a single Service Center.

The transition was estimated to take between twelve to fifteen months.

During the transition, teams were created to assume the Adjudication

Division's workload. The resources of the two divisions were merged,

and the Adjudication Officer was given the authority to manage the

combined operation. In October 1997, the agency received authorization

to recruit and fill ten Team Leader positions. The ten incumbents would

be responsible for managing the twenty teams that were being created.

On November 26, 1997, the agency posted the vacancy announcement for

the ten supervisory positions. Thirty (30) applicants deemed to have

the minimum qualifications required for the position were interviewed

by a four-member panel. The panel then reached a consensus on the ten

individuals to be selected. Four noncompetitive applicants were selected

and six competitive candidates were chosen. All of the selectees were

employed in the Adjudication Division. Four of the selectees were male

and six were female. Complainant was notified of his non-selection on

February 9, 1998.

The AJ found that complainant established a prima facie case of disparate

treatment on the basis of sex. The AJ also determined that the agency

offered a legitimate, non-discriminatory reason for complainant's

non-selection. The four panel members, including the selecting official

(SO), testified that they could have selected any of the thirty (30)

applicants referred for selection because they all possessed the required

qualifications for the position. However, given the nature of the

position, it was determined that rating and adjudication experience were

the most desirable qualities for facilitating the processing of claims.

Therefore, all of the selectees were chosen from the Adjudication

Division. Complainant did not work in the Adjudication Division;

consequently, he was deemed to be less qualified than the selectees.

With respect to pretext, the AJ found that complainant was unable to

establish that the agency's reason for not selecting him was unworthy

of credence. Complainant maintained that some of the female applicants

did not have adjudication experience; however, the AJ found no objective

evidence to support complainant's assertions. The AJ noted that all

the documentary evidence showed that all of the selectees worked in

the Adjudication Division and were Veterans Claims Examiners, while

complainant was a Veterans Contact Representative/Counselor in the

Veterans Services Division. Because the positions were created for the

primary purpose of overseeing the adjudication and processing of claims

for veterans, the AJ found that it was consistent with this goal to

select individuals with experience in this area. Among other things,

the AJ also found that complainant simply did not establish that his

qualifications were plainly superior to those of the selectees.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings

by an Administrative Judge 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 Board,

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). After a

review of the record in its entirety, including consideration of all

statements submitted on appeal, it is the decision of the Equal Employment

Opportunity Commission to AFFIRM the FAD because the Administrative

Judge's ultimate finding, that unlawful employment discrimination was

not proven by a preponderance of the evidence, is supported by the record.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

July 13, 2001

______________________________

Date