01975592
11-03-1999
An-Ti Chai, Appellant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.
An-Ti Chai, )
Appellant, )
) Appeal No. 01975592
v. ) Agency No. NCN-95-LERC-A058
) Hearing No. 220-97-5021X
Daniel S. Goldin, )
Administrator, )
National Aeronautics and )
Space Administration, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his Equal Employment Opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges that he was discriminated against on the bases of race
(Asian), national origin (Chinese) and in reprisal for prior EEO activity
when the agency did not select him to be Chief of the Microgravity
Fluids Branch in the Space Experiments Division. In accordance with
EEOC Order No. 960.001, the Commission accepts the appeal and for the
following reasons, affirms the FAD.
The record reveals that appellant, an Aerospace Engineer at the agency's
Lewis Research Center in Cleveland, Ohio, filed a formal EEO complaint
with the agency on July 28, 1995. At the conclusion of the investigation,
appellant requested a hearing before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a Recommended Decision (RD) finding
no discrimination. The agency's FAD adopted the AJ's RD.
The AJ determined that although appellant failed to establish a prima
facie case of race discrimination since the selectee was also Asian,
he established a prima facie case of national origin discrimination and
retaliation. The AJ found that the agency articulated a legitimate,
nondiscriminatory reason for its selection, namely, that the selectee
was the best qualified candidate for the position. The AJ concluded that
appellant did not establish that the agency's articulated reason for his
nonselection was a pretext for unlawful discrimination. In reaching this
conclusion, the AJ credited the Selecting Official's testimony that the
selectee was the unanimous choice of the interview panel. The selectee
had a Ph.D. in fluid physics and a record of both experimental and
analytical diagnosis. Additionally, while the selectee was Acting
Branch Chief, his performance was outstanding. Without making a specific
finding of preselection, the AJ noted that preselection is not unlawful
when it is based on the qualifications of the selectee and not on a basis
prohibited by Title VII. See McAllister v. United States Postal Service,
EEOC Request No. 05931038 (July 28, 1994); Goostree v. State of Tennessee,
796 F.2d 854, 861 (6th Cir. 1986).
Appellant submits a sixty five page brief in support of his appeal.
The brief attempts to discredit all of the agency's explanations for
its selection and to restate arguments previously made at the hearing.
Appellant also contends that the AJ erred when: (1) he failed to find
a prima facie case of race discrimination, arguing that the selectee
had different facial features and skin color; and (2) he denied the
submission into the record of a United States Department of Agriculture
publication listing stereotypes associated with Asian Pacific employees.
In response, the agency submits a brief in support of the FAD's findings.
Upon review, the Commission finds that the RD summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We remind appellant that an AJ has broad discretion to exclude evidence
he deems irrelevant or repetitious. See 29 C.F.R. � 1614.109(c); Malley
v. Department of the Navy, EEOC Appeal No. 01951503 (May 22, 1997).
We also remind appellant that an employer has even greater discretion
when selecting a management level employee, as in the instant case. See
Abood v. Agency for International Development, EEOC Appeal No. 01943562
(August 31, 1995); Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987).
Appellant alleges that the entire selection process was slanted to favor
the selectee. We find, however, as did the AJ, that appellant failed to
support his contention that he was better qualified for or more deserving
of the position than the selectee. Moreover, after reviewing appellant's
multiple arguments on appeal, we agree with the AJ that appellant did
not proffer any credible evidence which would support a finding that
discriminatory animus motivated the agency's action.
The AJ based his decision on a detailed assessment of the record and the
credibility of the witnesses. In general, the Commission accepts an AJ's
credibility determination. Esquer v. United States Postal Service, EEOC
Request No. 05960096 (September 6, 1996). We discern no reason to disturb
the AJ's finding of no discrimination. Accordingly, 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:
November 3, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations