01972552
04-02-1999
Thomas R. Beausoleil, Appellant, v. Richard J. Danzig, Secretary, Department of Navy, Agency.
Thomas R. Beausoleil v. Department of Navy
01972552
April 2, 1999
Thomas R. Beausoleil, )
Appellant, )
) Appeal No. 01972552
v. ) Agency No. 95-65923-005
) Hearing No. 140-95-8099X
Richard J. Danzig, )
Secretary, )
Department of Navy, )
Agency. )
)
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (white), sex (male), and
physical disability (treatment for colon cancer), in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq.; and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791,
et seq. Appellant alleges he was discriminated against when he was not
selected for the position of Weight and Balance Specialist, WG-5485-10,
(temporary not to exceed on year), from Merit Promotion Certificate
No. 327-94-2. The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the agency's decision is
AFFIRMED.
Appellant, filed a formal EEO complaint with the agency alleging that
the agency had discriminated against him as referenced above. At the
conclusion of the investigation, appellant requested a hearing before
an Equal Employment Opportunity Commission (EEOC) Administrative Judge
(AJ). Following a hearing, the AJ issued a Recommended Decision (RD)
finding no discrimination.
The AJ concluded that appellant established a prima facie case of
discrimination on all bases alleged, however, the AJ also concluded that
the agency articulated legitimate, nondiscriminatory reasons for its
actions. Agency officials explained that appellant was not selected for
the position in question because he was not the best qualified person.
After considering appellant's pretext arguments, the AJ found that
appellant failed to meet his burden to establish pretext under Title VII.
In reaching this conclusion, the AJ found that although appellant was
equally qualified, he failed to show, and the record failed to support
that appellant was clearly superior to the selectee when considering
each candidates performance evaluation, training or education, and job
experience. The agency's FAD adopted the AJ's RD. Appellant makes no
contentions on appeal, and the agency requests that we affirm the FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. As stated above, appellant offered no
additional persuasive evidence on appeal. Thus, we discern no basis
to disturb the AJ's findings of no discrimination which were based on
a detailed assessment of the record. Therefore, after a careful review
of the record, and arguments and evidence not specifically addressed in
this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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. � 1614.604(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 the 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 the 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 the 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. 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 (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:
April 2, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations