Larry Dow, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 9, 2004
01A44370 (E.E.O.C. Nov. 9, 2004)

01A44370

11-09-2004

Larry Dow, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Larry Dow v. Department of Veterans Affairs

01A44370

11-09-04

.

Larry Dow,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A44370

Agency No. 200H-2479

Hearing No. 100-A2-7469x

DECISION<1>

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.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the

following reasons, the Commission affirms the agency's final order.

The record reveals that complainant, an applicant for a position at the

agency's Western New York Health Care System in Buffalo, New York, filed

a formal EEO complaint on July 27, 2001, alleging that the agency had

discriminated against him on the bases of sex, race (black), disability

(physical) and in retaliation for previously participating in EEO activity

when on June 11, 2001, he was informed that he was not selected for the

position of police officer pursuant to vacancy announcement OC-01-083-1.

During the investigation of this matter, complainant withdrew the bases

of sex, race and disability from his complaint.

At the conclusion of the investigation, complainant received a copy

of the investigative report and requested a hearing before an EEOC

Administrative Judge (AJ). The AJ issued a decision without a hearing,

finding no discrimination.

The AJ concluded that complainant failed to establish a prima facie

case of retaliation discrimination, as the earlier protected activity

occurred in 1997. The AJ reasoned that the length of time between the

two activities was too long for the complainant to show a prima facie

case of reprisal. The AJ further found, after reviewing complainant's

and the selectee's qualifications, that complainant's qualifications were

not so superior to those of selectee to warrant a finding of pretext.

The selecting official in the instant case attested that he was aware

of the earlier EEO activity which did not name him as a responsible

management official, and was unaware of the current status of the earlier

complaint. The selecting official asserted that he selected a candidate

with supervisory experience, who had been a squad leader and team leader.

The agency's final order implemented the AJ's decision.

Complainant makes no new contentions on appeal, and the agency requests

that we affirm its final order.

After a careful review of the record, the Commission finds that grant

of summary judgment was appropriate, as no genuine dispute of material

fact exists. We find that the AJ's decision properly summarized the

relevant facts and referenced the appropriate regulations, policies,

and laws. Further, construing the evidence to be most favorable to

complainant, we note that complainant failed to present evidence that

any of the agency's actions were motivated by discriminatory animus

toward complainant's protected class.

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

____11-09-04______________

Date

1 We note complainant's request that this case be consolidated with EEOC

Appeal No. 01A43335. The issues in each case are distinct. However,

we reviewed both case files in preparation of this decision.