01a10168
01-10-2001
Abbas M. Shakir, Complainant, v. Davis J. Barram, Administrator, General Services Administration, Agency.
Abbas M. Shakir v. General Services Administration
01A10168
January 10, 2001
.
Abbas M. Shakir,
Complainant,
v.
Davis J. Barram,
Administrator,
General Services Administration,
Agency.
Appeal No. 01A10168
Agency No. 99-NCR-WP-AS-17
Hearing No. 100-AO-7477X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (EEO) 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.; and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1> Complainant alleges he was discriminated
against on the of bases of age (D.O.B, 12/15/39) and national origin
(Iraq) when he was not selected for the position of GS-14 Project Manager
Interdisciplinary, announced under Vacancy Announcement Number 99990105.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the following
reasons, the Commission AFFIRMS the agency's final action.
The record reveals that during the relevant time, complainant was
employed as a GS-810-13 Civil Engineer at the agency's headquarters
in Washington, D.C. Complainant applied for the position at issue and
was notified of his non-selection for the position on March 29, 1999.
Believing he was a victim of discrimination due to his non-selection,
complainant filed a formal EEO complaint with the agency on July 2,
1999. At the conclusion of the investigation, complainant received a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a Notice of Proposed Summary
Judgment on May 4, 2000, in conjunction with the acknowledgment order.
Pursuant to the agency's Motion for Summary Judgment, the AJ issued a
decision without a hearing, finding no discrimination.
The AJ concluded that there were no genuine issues of material fact
or credibility which necessitated a hearing, and thus issued summary
judgment for the agency, as it provided clear and specific reasons
for complainant's nonselection which were not shown to be pretextual.
The AJ further found that complainant did nothing more than make
generalized, uncorroborated assertions that he was discriminated against.
As complainant produced no evidence that he was more qualified than the
eventual selectee or any other evidence of pretext, the AJ issued summary
judgment in favor of the agency. The agency's final action implemented
the AJ's decision.
Complainant makes no new contentions on appeal, and the agency requests
that we affirm its final action.
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We find that complainant
failed to present evidence that any of the agency's actions in not
selecting him for the GS-14 Project Manager Interdisciplinary position
were more likely than not a pretext for discriminatory animus toward
complainant's age or national origin. In so finding, we note that the
record indicates that the Selecting Official was unaware of complainant's
national origin at the time he was not selected for the position at
issue, and further note that one of the selectees was age fifty-seven.
See Investigative Report, at Exhibits 9-E; 10-D, O. We further agree
with the AJ's finding that complainant failed to demonstrate that his
qualifications for the position were "so plainly superior as to require
a finding of pretext" on this basis. Bauer v. Bailar, 647 F.2d 1037,
1048 (10th Cir. 1981). We thus discern no basis to disturb the AJ's
decision. Therefore, after a careful review of the record and arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
January 10, 2001
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.