01a55913_r
02-03-2006
Montaaz Telford, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Montaaz Telford v. Department of Veterans Affairs
01A55913
February 3, 2006
.
Montaaz Telford,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A55913
Agency No. 2001-0508-2004100819
Hearing No. 110-A5-00420X
DECISION
Complainant appeals to the Commission from the agency's September 6, 2005
decision finding no discrimination. Complainant alleges discrimination
on the bases of race (African-American) and reprisal for prior EEO
activity when, on October 23, 2003, he was not selected for the position
of Health Technician Home Oxygen Coordinator, GS-640-8, Announcement
No. V703-RP2-1189. After holding a hearing, an EEOC Administrative Judge
(AJ) issued a decision on April 25, 2005, finding that complainant had
not been discriminated against. Specifically, the AJ found that the
agency presented a legitimate, nondiscriminatory reason for its action,
which complainant failed to rebut. The agency, on September 6, 2005,
issued a decision fully implementing the AJ's decision. Complainant now
appeals from that decision.
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.
We find that the agency articulated a legitimate, nondiscriminatory
reason for the nonselection. The Selecting Official (SO) stated that
he had first hand knowledge of the performance of both complainant
and the selectee. The SO said that they both had an above average
knowledge and skill in their profession. The SO asserted that there
were key differences between complainant and the selectee that made
the selectee the better choice. The SO reported that the Home Oxygen
Coordinator must work with a broad range of people within and outside the
facility and demonstrate good problem-solving and administrative skills.
The SO argued that the selectee was a public school teacher, was working
on her Masters degree in Public Health and had dealt with a diverse
group of people designing educational plans and administering them.
The SO claimed that the selectee's responses to the questions related to
problem solving were superior. The SO stated that complainant was able
to come up with alternative solutions to a problem and still demonstrate
the judgment to seek help when indicated. The SO articulated that
complainant demonstrated a more concrete thinking process and was quicker
to seek help. The SO stated that complainant rationalizes problems
when he can. The SO summarized that complainant was better suited to
a narrower work environment to accommodate his �linear� thinking, i.e.,
one case or problem at a time. The SO asserted that the selectee was
better suited to deal with multiple problems at the same time and thus
was better qualified to be the Home Oxygen Coordinator.
The SO claimed that there were other reasons why complainant was
not selected. The SO stated that complainant was clearly a bright
intelligent young man. The SO reported that complainant's interactions
with his patients were perfectly acceptable. However, the SO argued
that complainant had an inflexible attitude towards his coworkers and
did not realize when he was hurting their feelings or demeaning them.
The SO asserted that complainant lacks the �people experience,� tolerance
and patience needed to interact with a broad range of people.
Complainant failed to rebut the agency's articulated legitimate,
nondiscriminatory reasons for the selection decision. Furthermore,
complainant 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 discrimination. The AJ's decision is supported
by substantial evidence. Complainant failed to show, by a preponderance
of the evidence, that he was discriminated against on the bases of race
or reprisal.
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
February 3, 2006
__________________
Date