Mackie L. Maynor, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionSep 4, 2002
01A22749_r (E.E.O.C. Sep. 4, 2002)

01A22749_r

09-04-2002

Mackie L. Maynor, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Mackie L. Maynor v. Department of Veterans Affairs

01A22749

September 4, 2002

.

Mackie L. Maynor,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A22749

Agency No. 2003-1213

Hearing No. 310-A1-5014X

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.

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

The record reveals that complainant filed a formal EEO complaint, dated

November 24, 1999, claiming that the agency discriminated against him in

reprisal for prior protected activity when on August 12, 1999, he was

not selected for the position of Medical Clerk at the agency's North

Texas Health Care System, in Dallas, Texas, announcement number 99-A6-112.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). Following a hearing, the AJ issued a decision finding no

discrimination.

The AJ determined that complainant did not establish a prima facie

case of discrimination on the basis of reprisal. Specifically, the AJ

found that although complainant participated in EEO activity in 1995,

there was no evidence that established that either selecting official

was aware of complainant's activity.

The AJ also found that the agency articulated a legitimate,

non-discriminatory reason for not selecting complainant for the Medical

Clerk position. The AJ found that the selectee was chosen because

of her extensive computer experience and fifteen years of conducting

administrative and organizational functions. When the selectee declined

the position, it was then offered to an individual who had previously

performed the tasks of the job. Consequently, the AJ found that

complainant did not establish discrimination based on reprisal.

The agency's final action implemented the AJ's decision. Complainant

makes no new persuasive contentions on appeal.

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

an AJ 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). An AJ's conclusions of law are subject to a

de novo standard of review, whether or not a hearing was held.

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

AJ's findings of fact are supported by substantial evidence in the

record and that the AJ's decision properly summarized the relevant

facts and referenced the appropriate regulations, policies, and laws.

We agree that the complainant failed to establish a prima facie case of

discrimination based on reprisal. Complainant did engage in prior EEO

activity in 1995; however, the record does not show that the selecting

officials were aware of his activity. Moreover, complainant has not

established a connection between the 1995 EEO activity and the August

1999 non-selection. Assuming arguendo that complainant had established a

prima facie case, we agree that the agency has articulated a legitimate,

non-discriminatory reason for choosing the selectee, namely that he was

the best individual for the job. While complainant was ranked as a

"best qualified", he has less computer experience than the selectee,

and computer skills were an important aspect of the position. During the

hearing, complainant attempted to establish through his witnesses that he

was a good employee. However, complainant did not show that the selecting

officials were aware of his prior EEO activity; that he was clearly the

best qualified applicant for the Medical Clerk position; or that the

agency's reason for his non-selection was pretext for discrimination.

Because complainant has failed to present evidence that any of the

agency's actions were in retaliation for his prior EEO activity, we

discern no basis to disturb the AJ's decision.

Accordingly, after a careful review of the record, including arguments

and evidence not specifically addressed in this decision, we AFFIRM the

agency's final order.

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 4, 2002

__________________

Date