01a40717
04-29-2005
Vincent L. Galzerano, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Vincent L. Galzerano v. Department of the Navy
01A40717
April 29, 2005
.
Vincent L. Galzerano,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A40717
Agency No. 01-65888-044
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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 accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission affirms
the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Pneudraulic Systems Mechanic Leader at the agency's Naval Aviation
Depot in San Diego, California. Complainant sought EEO counseling and
subsequently filed a formal complaint on August 22, 2001, amended March
27, 2002, alleging that he was discriminated against on the basis of
reprisal for prior EEO activity when:
(1) on February 8, 2001, complainant was not selected for either of two
promotions for Pneudraulic Systems Mechanic Supervisor I, WS-8255-11;
(2) in March 2001, complainant was not rated �eligible� for the position
of Aircraft Engine Mechanic Supervisor, WS-8602-11;
(3) on June 5, 2001, complainant was not rated �eligible� for the position
of Quality Assurance Specialist, GS-1910 (multiple grades); and
(4) on September 20, 2001, complainant was not selected for a temporary
promotion to Pneudraulic Systems Mechanic Supervisor, WS-8255-11, from
Certificate No. 02JAN7P565888H035405.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested that the agency issue a final decision.
In its FAD, the agency concluded that although complainant established
a prima facie case of reprisal discrimination, it effectively rebutted
complainant's assertions by articulating legitimate nondiscriminatory
reasons for complainant's non-selection. On appeal, complainant reiterates
his contention that the reasons proffered by the agency were pretext
for reprisal discrimination. The agency requests that we affirm its FAD.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request
No. 05950842 (November 13, 1997). To ultimately prevail, complainant must
prove, by a preponderance of the evidence, that the agency's explanation
is a pretext for discrimination. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Here, although the Commission finds that complainant properly established
a prima facie case of reprisal discrimination, we also find that
complainant failed to present evidence that, more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination.
Addressing complainant's contention that he was not selected for
promotion to Pneudraulic Systems Mechanic Supervisor I, we find that
the record reflects that the selectees had more supervisory experience,
which was the determining criteria. (Report of Investigation, Exhibit F-2,
220). Further, with respect to the position of Aircraft Engine Mechanic
Supervisor, we find that the record reflects that complainant's resume
failed to indicate journeyman-level Aircraft Engine Mechanic experience
which was the determining criteria. (R.O.I., Ex. F-4, 252). As for not
being rated �eligible� for the Quality Assurance Specialist position,
we find that the record reflects that complainant's resume failed
to indicate audit and inspection experience which was the determining
criteria. (R.O.I., Ex. F-3, 226). Finally, as to complainant's contention
that he was not selected for promotion to Pneudraulic Systems Mechanic
Supervisor on September 20, 2001, we find that the record reflects that
the selectee had more leadership experience, which was the determining
criteria. (R.O.I., Ex. F-2, 221). Accordingly, we conclude that
complainant failed to show, by a preponderance of the evidence, that
the agency's actions were a pretext for unlawful reprisal discrimination.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, the Commission affirms
the FAD.
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
April 29, 2005
__________________
Date