01985980x
01-19-2000
Thomas A. Ficht, Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Thomas A. Ficht, )
Complainant, )
)
v. ) Appeal No. 01983672
) Agency No.
Andrew M. Cuomo, )
Secretary, )
Department of Housing and )
Urban Development, )
Agency. )
______________________________)
DECISION
Thomas A. Ficht (complainant) timely initiated an appeal to the Equal
Employment Opportunity Commission (EEOC) from the final decision of the
agency concerning complainant's claims that the agency violated Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The
appeal is accepted in accordance with EEOC Order No. 960, as amended.
The issues on appeal are whether the agency discriminated against
complainant on the bases of age (62) and reprisal (prior EEO activity)
when he was not selected for the position of Director, Atlanta Community
Planning and Development (CPD) Office and his position as Director,
Program Management Division, Atlanta Field Office, was abolished.
The record shows that in April 1994, the newly created position of
Director, Office of Community Planning and Development (CPD) (the Director
position) was advertised. Complainant applied for the position along
with fifteen (15) other applicants. In July 1994, Complainant was advised
that, as a result of an upcoming agency reorganization, his position of
Director of the Program Management Division (P-1) would be abolished in
August 1994. Complainant sought EEO counseling although P-1 was not
abolished in August 1994 as planned. At the time, Atlanta was officially
a Regional office which had oversight over several Area offices. Under
the reorganization plan, Atlanta would become the Georgia State Office in
keeping with the agency's plan to eliminate the agency's Regional office
layer of management. In December 1994, a candidate (age 52; no prior EEO
activity) was selected for the Director position; the selectee had served
as Acting Director of the Georgia CPD since September 1994. Complainant
sought EEO counseling in February 1995 regarding his nonselection to
the Director position and regarding the abolishment of his P-1 position;
complainant's P-1 position had not yet been eliminated at this time.
In April 1995, the reorganization officially became effective and
complainant filed a formal EEO complaint in May 1995. Effective July
23, 1995, complainant was reassigned to the position of Supervisory
Environmental Officer (SEO) with no loss in pay or grade status.
Initially, the agency dismissed complainant's claim regarding the
elimination of his P-1 position because it involved a proposed action
and complainant never sought EEO counseling when P-1 was actually
eliminated. However, assuming that this dismissal was improper, the
agency analyzed the merits of the evidence relating to the elimination
of P-1. The agency found that complainant failed to produce direct,
statistical or comparative evidence to support his claims of age and
reprisal discrimination. The agency noted that the positions of three
other regional officials in the Atlanta area were eliminated. The agency
also emphasized that all ten (10) regional offices were reorganized
and fifty-four (54) other CPD positions were abolished during the
reorganization.
Regarding complainant's nonselection to the Director position, the agency
found that complainant failed to prove that age or prior EEO activity was
a factor in the selection process. The agency cited the testimony of
the selecting officials (SOs), who stated that their decision was based
on the applicants' qualifications, particularly their oral interviews.
In this regard, the agency emphasized that both SOs testified that
the selectee's overall ability to discuss his plan for achieving the
Department's goals set him apart from complainant. According to the SOs'
testimony, the selectee also displayed a high level of confidence in his
ability to incorporate innovative approaches to managing the Department
and his prior senior management experience was most related to the
position's responsibilities.
Complainant's complaint constitutes a claim of disparate treatment
and the agency properly analyzed it under the three-tiered analytical
framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
Texas Dept. of Community Affairs v. Burdine, 450 U.S.248, 253-256 (1981);
Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425
F.Supp. 318, aff'd, 545 F.2d 222 (1st. Cir. 1976). See also McKenna
v. Weinburger, 729 F.2d 783, 791 (D.C. Cir. 1984); Burrus v. United
Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir. 1982);
and Loeb v. Textron , Inc., 600 F.2d 1003 (1st Cir. 1979).
Applying these legal standards, the Commission finds that the agency
correctly determined that complainant failed to prove his claims of
age and reprisal discrimination. The Commission finds that the agency
correctly concluded that complainant failed to prove, by a preponderance
of the evidence, that he was discriminated against based on his age or
prior EEO activity. The Commission agrees that the agency's explanations
for complainant's nonselection to the Director's position and the
agency's elimination of P-1 were credible. The Commission took into
consideration that complainant's prior position, P-1, apparently had
some of the responsibilities that a CPD state director's position might
have had. However, the record, nonetheless, shows that P-1 was officially
a regional position which was eliminated in accordance with the agency's
overall reorganization plan. Accordingly, after carefully considering
the record, including complainant's contentions on appeal, we find that
complainant failed to prove that he was discriminated against based on
his age and prior EEO activity.
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:
Jan 19,2000
DATE Carlton 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: