0120063647
09-20-2007
Mostafa F. Eldakdoky, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Mostafa F. Eldakdoky,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120063647
Hearing No. 100-2002-07923X
Agency No. 010518
DECISION1
On May 26, 2006, complainant filed an appeal from the agency's April
26, 2006, final order concerning his equal employment opportunity (EEO)
complaint alleging 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 deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission affirms
the agency's final order with respect to claim (1), but remands claims
(2) and (3) for further processing.
Complainant works as a Food Technologists, GS-14, for the agency's Foreign
Agricultural Service. During the relevant time, he filed EEO complaints
alleging that he was discriminated against and subjected to a hostile
work environment on the bases of national origin (Egyptian), sex (male),
religion (Muslim), and reprisal for prior protected EEO activity when:
1. he was not selected for the position of International Training
Specialist, GS-301-13, advertised under Vacancy Announcement
No. F1-FAS-113 (Bases: national origin, sex, religion, and reprisal);
2. he was not selected for the position of International Relations
Advisor, GS-301-13, under a Schedule B Appointment (closing date October
27, 2000) (Bases: national origin, sex, and reprisal); and
3. he was not selected for the position of International Relations
Advisor, GS-301-13, under a Schedule B Appointment
(closing date January 21, 2000) (Bases: national origin, sex, and
reprisal).
At the conclusion of a January 2006 investigation, complainant was
provided with a copy of the report of investigation and notice of his
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing, and the AJ held a hearing on
March 21, 2006 on claim (1). The AJ explained that the hearing was
being held pursuant to a remand order from the Commission in EEOC Appeal
No. 01A44727 (July 6, 2005). Moreover, he noted that the aforesaid
Commission decision declined to address two nonselections (claims (2)
and (3)), which complainant sought to include in the original complaint.
He stated that the agency never investigated claims (2) and (3), and as
such, the two claims were not ripe for adjudication.
On April 6, 2006, the AJ issued a bench decision on the merits of claim
(1). The AJ found that complainant established a prima facie case
of national origin and sex discrimination, and he assumed arguendo
that complainant also established a prima facie case of religion
and reprisal discrimination. He then determined that the responsible
management official (RMO), who he found credible, articulated legitimate
nondiscriminatory reasons for his selection. Specifically, the RMO,
along with two others, rated and ranked the candidates, interviewed
the three top ranked candidates,2 and found the selectee (female,
different national origin than complainant) to be the best qualified.
In this regard, the RMO stated that the selectee had, among other
things, served in the position of International Training Specialist for
several years, reported directly to him, was a Schedule B employee,3
received an outstanding performance evaluation each year, possessed an
M.B.A. from George Washington University with an emphasis on international
marketing, and managed and administered international education programs
with budgets over $1 million. After carefully considering each of
complainant's arguments regarding pretext, the AJ concluded that
complainant failed to show that the agency's reasons were, in fact,
pretext for discrimination.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged. It is from that order that complainant now appeals.
In his statement on appeal, complainant asserts that the agency failed
to complete an impartial investigation inasmuch as it only included
affidavits from him and the RMO. He noted in this regard that the
investigator did not contact his witnesses. In addition, he explained
that the agency never investigated claims (2) and (3) despite having
issued a letter of acceptance on July 23, 2002. Moreover, he stated that
in March 2006 the agency told him that it would complete an investigation
of the two claims. However, on May 2, 2006, the Civil Rights Staff
informed him that it would not investigate the two claims because the
AJ's decision was pending on the complaint.
On December 6, 2006, the agency submitted an addendum to the Report of
Investigation to include the investigation conducted on claims (1) and
(2).
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. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
In the present case, we note that the AJ found the RMO to be a credible
witness for the agency.
The Commission finds that the AJ's decision summarized the relevant
facts and referenced the appropriate regulations, policies, and laws. We
discern no reason to disturb the AJ's decision finding no discrimination
on the bases of national origin, sex, religion, or reprisal with respect
to claim (1). Complainant maintains that the agency failed to complete
an impartial investigation. We, however, find that complainant had
sufficient opportunity to develop the record with regard to claim (1)
during both discovery and the hearing. To the extent that the agency
failed to interview complainant's witnesses during the investigation,
the AJ provided complainant with ample opportunity to do so if he so
wished during the hearing. For these reasons, the Commission finds
that the AJ's finding of no discrimination with respect to claim (1)
is supported by substantial evidence in the record.
With respect to claims (2) and (3), 29 C.F.R. � 1614.108(f) provides that
the agency shall provide the complainant with a copy of the investigative
file, and shall notify the complainant that, within 30 days of receipt
of the investigative file, the complainant has the right to request
a hearing and a decision from an AJ or may receive an immediate final
decision from the agency. 29 C.F.R. � 1614.108(f). Here, there is no
indication in the record that the agency provided complainant with the
right to request a hearing before an EEOC AJ or a final agency decision,
or that the agency has issued a final decision. The Commission finds
therefore that the claims are prematurely before us, and remands claims
(2) and (3) to the agency for further processing.
Based on a thorough review of the record, the Commission affirms the
agency's final order with respect to claim (1), but remands claims (2)
and (3) for further processing in accordance with the order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108(f). The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within thirty (30) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the complainant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
___9/20/07_______________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 The RMO could not recall whether the interview panel consisted of the
same individuals as the ranking panel.
3 The RMO explained that converting the selectee from a Schedule B
employee to an appropriated funding position was advantageous because the
agency was moving her position from reimbursed funding to appropriated
funding.
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0120063647
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063647