Michael Testa, Complainant,v.Bill Richardson, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionFeb 4, 2000
01976888 (E.E.O.C. Feb. 4, 2000)

01976888

02-04-2000

Michael Testa, Complainant, v. Bill Richardson, Secretary, Department of Energy, Agency.


Michael Testa v. Department of Energy

01976888

February 4, 2000

Michael Testa, )

Complainant, )

) Appeal No. 01976888

v. ) Agency No. 96(161)WAPA

Bill Richardson, )

Secretary, )

Department of Energy, )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision

(FAD) concerning his complaint of unlawful employment discrimination

on the basis of sex (male) and age (D.O.B: 4/2/47), in violation of

Title VII of the Civil Rights Act of 1964, 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.<0> Complainant claimed he

was discriminated against when he was not selected for the position of

supervisory electrical engineer, GS-850-13/14, at Huron, South Dakota,

or for a similar position at Loveland, Colorado. The appeal is accepted

in accordance with EEOC Order No. 960.001. For the following reasons,

the Commission AFFIRMS the FAD.

Following the investigation, complainant requested a final agency

decision (FAD). The FAD concluded that complainant was not subject

to discrimination. It is from this decision that complainant now appeals.

The record reveals that during the relevant time, complainant was

employed as a Project Manager, GS-850-13, at the agency's Billings,

Montana facility.

The FAD concluded that although complainant established a prima facie

case of sex and age discrimination, complainant failed to establish that

the agency's articulated reasons for its actions were a pretext to mask

unlawful discrimination. Specifically, the selecting official concluded

that complainant was not the best qualified candidate for the position,

and that he did not make the final selection list of five candidates.

After a careful review of the record, based on McDonnell Douglas

Corp.v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003 (1st

Cir. 1979), and Prewitt v. United States Postal Service, 662 F.2d 292

(5th Cir. 1981), the Commission finds that the final agency decision

summarized the relevant facts and referenced the appropriate regulations,

policies, and laws. We note that complainant failed to present evidence

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

towards complainant's sex and age. Therefore, the Commission discerns

no basis to disturb the FAD. Accordingly, it is the decision of the

Equal Employment Opportunity Commission to AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

February 4, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________

_________________________

(FOR OFO MERIT CASES) (INTERNAL CIRCULATION ONLY)

INITIAL

DATE

TO: CARLTON M. HADDEN

TO: HILDA RODRIGUEZ

APPEAL NUMBER 01976888

AGENCY NUMBER 96(161)WAPA

REQUEST NUMBER

HEARING NUMBER

THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:

TITLE

NAMES

INITIAL

DATE REVIEWED

(ATTORNEY): Gloria J. Norris

11/29/99

(SUPERVISOR): Marjorie Borders

(DIVISION DIRECTOR):

[Division Director (if any)]

COMPLAINANT(S): Michael Testa

AGENCY: Department of Energy

DECISION: AFFIRMED

STATUTE(S) ALLEGED: Title VII; ADEA

BASIS(ES) ALLEGED: GM; OA

ISSUE(S) ALLEGED: A4; P3

WHERE DISCRIMINATION IS FOUND (ONLY):

(A) BASIS(ES) FOR FINDING:

(B) ISSUES IN FINDING:

TYPIST/DATE/DISKETTE GN1/ 11/29/99/ FY2000: P:01976888

SPELL CHECK Yes

TEAM PROOFED

DATE

(CHECK ALL APPLICABLE CODES)

MERIT DECISION

MERIT DECISION (CONTINUED)

X 4A - MERITS DECISION

? 4B - OFO FOUND DISCRIMINATION

LIST BASIS CODES:__________________________________

LIST ISSUE CODES:__________________________________

X 4C - OFO FOUND NO DISCRIMINATION

? 4R - OFO FOUND SETTLEMENT BREACH

? 4S - OFO FOUND NO SETTLEMENT BREACH

? 4E - AGENCY FOUND DISCR./BREACH

X 4F - AGENCY FOUND NO DISCR./BREACH

X 4H - OFO AFFIRMED AGENCY

? 4I - OFO REVERSED AGENCY

? 4J - OFO MODIFIED AGENCY:

? 3P - ADVERSE INFERENCE

(NOTE): IF AFFIRMED IN PART AND REVERSED IN

PART, THEN (3L) CODE REQUIRED IF AT LEAST

ONE ISSUE IS REMANDED.

REVISED - (11/03/99)

? 3L - OFO REMANDED PART OF AGENCY'S MERITS

DECISION. IF BREACH IS BASIS, USE OF (3L) ALSO

REQUIRES (4I) CODE.

? 4K - AJ FOUND DISCRIMINATION

? 4L - AJ FOUND NO DISCRIMINATION

? 4M - AJ MADE NO FINDING

? 4N - OFO AFFIRMED AJ

? 4O - OFO REVERSED AJ

? 4P - OFO MODIFIED AJ

? 3H - OFO DENIED ATTORNEYS FEES

? 3I - OFO APPROVED ATTORNEYS FEES

? 3J - OFO MODIFIED ATTORNEYS FEES

? 4Q - COMPLIANCE

REQUIRED

1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply the

revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,

in deciding the present appeal. The regulations, as amended, may also

be found at the Commission's website at WWW.EEOC.GOV.