01a53354
09-12-2005
Juanito M. Aldea, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Juanito M. Aldea v. Department of Veterans Affairs
01A53354
September 12, 2005
.
Juanito M. Aldea,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A53354
Agency No. 2001-0534-2004101420
Hearing No. 140-2004-00334X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. For the following reasons, the Commission affirms
the agency's final order finding no discrimination.
The record reveals that complainant, a Supervisory Inventory Management
Specialist at the agency's Charleston, VA Medical Center facility,
filed a formal EEO complaint on March 23, 2004, alleging that the agency
discriminated against him on the bases of national origin (Philippines)
and age (D.O.B. 01/27/42) when he was not selected for the position of
Supervisory Inventory Management Specialist, GS-2010-11, under Vacancy
Announcement Number V703-RP2-1101.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On March 7, 2005, the AJ issued a decision without a hearing,
finding no discrimination.
The AJ concluded that complainant established a prima facie case
of national origin and age discrimination because he applied and was
qualified for the position; he was not selected for the position; and a
person outside of his protected groups was selected for the position.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for not selecting complainant which he failed
to rebut.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
The Commission finds that the agency has articulated legitimate
nondiscriminatory reason for its actions which complainant failed
to rebut. Eleven applicants applied for the position and only nine
applicants were interviewed. Each applicant received an interview score
out of a possible 50. Complainant received an interview score of 21,
whereas the selectee received an interview score of 49. The Selecting
Official (SO) stated that complainant did not perform well during the
interview and had to continually refer to his application package. The SO
stated that complainant was unable to answer an interview question and his
responses were vague and lacked focus. In comparison, the SO stated that
the selectee presented himself as articulate and knowledgeable during
the interview. The SO stated that she chose the selectee because he
had an extensive knowledge of logistics as a whole, knowledge of the VA
logistics program and had applied VA rules, regulations and procedures
in the performance of his current duties. The complainant failed to
present any evidence to show that the agency's articulated reason for
his nonselection was not true, but was a pretext for unlawful age and
national origin discrimination.
Complainant has failed to show that his qualifications for the position
were plainly superior to the selectee's qualifications or that the
agency's action was motivated by national origin or age discrimination.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
September 12, 2005
__________________
Date