01965350
10-29-1998
Jerome Pikulinski Appellant, v. Madeline K. Albright Secretary, Department of State, Agency.
Jerome Pikulinski v. Department of State
01965350
October 29, 1998
Jerome Pikulinski )
Appellant, )
)
v. ) Appeal No. 01965350
) Agency No. 95-02
Madeline K. Albright ) Hearing Nos. 100-95-7645X
Secretary, )
Department of State, )
Agency. )
)
DECISION
Appellant timely appealed the final decision of the Department of State
(agency), concerning his complaint alleging that the agency discriminated
against him in violation of the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. 621 et seq. This appeal is accepted by the
Commission in accordance with the provisions of EEOC Order No. 960.001.
On October 11, 1994, appellant filed a formal complaint alleging the
agency discriminated against him on the basis of his age (55 years old)
when the agency terminated his candidacy for a Foreign Service Officer
position at the oral assessment stage. Following the completion of
the agency's investigation of his complaint, appellant requested an
EEOC hearing with an administrative judge (AJ). On March 14, 1996,
the AJ issued a Notice of Findings and Conclusions Without a Hearing
(summary judgment). Appellant subsequently submitted a statement in
opposition to the summary judgment, and the agency submitted a memorandum
in support of a summary judgment. Based on the parties submissions,
during the investigative stage of this complaint and after the notice
of summary judgment, and the report of investigation, the AJ determined
that summary judgment was appropriate. Therefore, in accordance with
29 C.F.R. �1614.109, on April 18, 1996, the AJ issued Findings and
Conclusions without a hearing finding no discrimination. The agency
subsequently adopted the AJ's findings on June 17, 1996.
The AJ determined that appellant established a prima facie case of
age discrimination because he was over 40 years old; he met the basic
qualifications for the foreign service officer position as demonstrated by
his passing of the written examination; he was rejected for the position
at the oral assessment stage; and candidates under 40 passed the oral
assessment stage during the same time period.
Notwithstanding her finding of a prima facie case, the AJ found that
the agency articulated legitimate, nondiscriminatory reasons for
its decision to terminate appellant's candidacy for the position in
question. The examiner's scores of appellant's performance during the
oral assessment averaged 4.6 points. The cutoff score was 5.8. The AJ
noted that the examiners who assessed appellant's performance did not have
access to the candidates' applications and their underlying biographical
information (such as date of birth, which was indicated on the SF-171s)
until after the candidates were evaluated and an overall score reached.
In the performance summary dated March 2, 1994, the examiners noted
several positive skills demonstrated by appellant such as his good eye
contact, smooth presentation, "generally clear" writing that was free
of technical errors, relaxed manner, and well-projected voice, but also
identified a number of problems with appellant's performance during
the oral exercises. For instance, the examiners noted that during
the Demarche exercise, appellant demonstrated that he was a skilled
negotiator, but lectured his hosts and made some "rather insensitive"
suggestions. The examiners stated that during the hypothetical exercises,
appellant opted for an extreme response, had difficulty grasping
follow-up questions, and was unable to come up with an effective action.
Although the examiners found that appellant had some good ideas in the
area of public diplomacy, they noted that appellant showed no objectivity
in his proposed course of action and failed to show any resourcefulness
or concern for U.S. values. Also, the examiners noted that during the
group exercise, appellant gave an incomplete project presentation and
had little influence on the discussion because he argued repeatedly for
his project showing no other concern. Finally, regarding appellant's
writing, the examiners stated that appellant's essay conclusions were
not well supported, and that he failed to convey the true sense of the
Demarche session in his report.
The AJ acknowledged appellant's efforts to establish pretext but found
appellant's arguments unpersuasive. Furthermore, the AJ found that
appellant's pretext argument failed to raise a genuine issue of material
fact on the ultimate issue of whether the evaluators' reasons for
rejecting him were pretext for age discrimination. Therefore, the AJ
concluded that appellant failed to prove that the agency discriminated
against him on the basis of his age.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that the AJ's recommended decision properly analyzed appellant's
complaint as a disparate treatment claim. Additionally, the AJ set forth
the relevant facts and properly analyzed the appropriate regulations,
policies, and laws applicable to this case. We add that appellant failed
to raise any additional persuasive evidence on appeal in support of his
claim. Therefore, we discern no reason to disturb the AJ findings and
conclusions. Accordingly, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the final agency decision.
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. �l6l4.604(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:
Oct 29, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations