01980944
11-13-1998
Roy J. Marsters, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Roy J. Marsters v. Department of the Army
01980944
November 13, 1998
Roy J. Marsters, )
Appellant, )
)
v. ) Appeal No. 01980944
) Agency No. ALFO9506F0150
Louis Caldera, ) Hearing No. 170-96-8213X
Secretary, )
Department of the Army, )
Agency. )
___________________________________)
DECISION
On October 29, 1997, Roy J. Marsters (appellant) timely appealed the
final decision of the Department of the Army (agency), dated September
24, 1997, concluding he had not been discriminated against in violation
of the Age Discrimination in Employment Act (ADEA) of 1967, as amended,
29 U.S.C. �621 et seq., and Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. In his complaint, appellant alleged
that agency officials had discriminated against him on the basis of
his age (age 61; DOB: 07-12-34), and/or reprisal for engaging in prior
EEO activity, when he was not selected for the position of Industrial
Hygienist Manager, GS-13, in January 1995. This appeal is accepted in
accordance with the provisions of EEOC Order No. 960.001.
At the time this matter arose, appellant was employed by the agency
since 1991 as a GS-12 Industrial Hygienist at the Patterson Army
Community Hospital in Fort Monmouth, New Jersey. Appellant submitted
a timely application in response to an agency vacancy announcement for
the position of Industrial Hygienist Manager, GS-13. Appellant was one
of two candidate referred to the selecting official as best qualified
for the position. The record establishes that, although he was already
familiar with both candidates as he was their immediate supervisor, the
selecting official interviewed both the candidates on the best qualified
list. After the interviews, the other candidate (age 46) was selected
for the position in question. The selecting official testified that the
selectee was chosen for his superior performance during the interview and
for his prior GS-13 supervisory experience. In contrast, the selecting
official explained that appellant had no experience as a supervisor at
the GS-13 level or in mentoring subordinates. The selecting official
also contended that appellant did very poorly during the interview.
In addition, the selecting official denied any knowledge of appellant's
prior EEO activity as the time he made the selection decision.
On May 31, 1995, appellant filed a formal EEO complaint with the
agency, alleging that the agency had discriminated against him as
referenced above. The agency accepted the complaint and conducted
an investigation. At the conclusion of the investigation, appellant
requested an administrative hearing before an Equal Employment Opportunity
Commission (EEOC) administrative judge (AJ).
On September 15, the AJ issued a decision without a hearing, pursuant
to 29 C.F.R. �1614.109(e), and concluded that no age discrimination
or unlawful retaliation had occurred. In that decision, the AJ first
found appellant failed to establish a prima facie case of reprisal
discrimination because there was insufficient evidence that the selecting
official was aware of appellant's prior EEO activity at the time he made
his decision. With regard appellant's age discrimination claim, the AJ
concluded that the agency successfully rebutted any initial inference of
discrimination raised by appellant with its articulation of legitimate,
nondiscriminatory reasons for the selection made. The AJ went on to hold
that appellant failed to meet his burden of proving, by a preponderance
of the evidence, that the agency's articulated reasons for its actions
in this matter were unbelievable or that its actions were more likely
motivated by discriminatory factors.
On September 24, 1997, the agency adopted the findings and conclusions
of the AJ and issued a final decision finding no discrimination or
retaliation. It is from this decision that appellant now appeals.
After a careful review of the record in its entirety, the Commission finds
that the AJ's recommended decision sets forth the relevant facts and
properly analyzes the case using the appropriate regulations, policies
and laws. Based on the evidence of record, the Commission discerns
no basis to disturb the AJ's finding of no discrimination. Nothing
proffered by appellant on appeal differs significantly from the arguments
raised before, and given full consideration by, the AJ. Accordingly,
it is the decision of the Equal Employment Opportunity Commission to
AFFIRM the agency's final decision which adopted the AJ's finding of no
discrimination or retaliation.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Nov 13, 1998
__________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations