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