01972667
03-12-1999
Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Domonic D. DeGiulio v. Department of the Army
01972667
March 12, 1999
Domonic D. DeGiulio,
Appellant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01972667
Agency No. SAN95AR0434E
Hearing No. 360-96-8622X
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (Commission or EEOC) from a final agency decision (FAD)
concerning his allegation that the agency discriminated against him
on the bases of sex (male) and age (61), when on January 31, 1995, he
was not selected for either of two dental assistant positions, series
GS-681-5/6, under vacancy announcement MED-95-0020-21 dated January
24, 1995, in violation of Title VII of the Civil Rights Act of 1964,
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. The
Commission hereby accepts the appeal in accordance with EEOC Order No.
960.001. For the following reasons, the FAD is AFFIRMED.
At the time of the alleged discriminatory event, appellant was employed as
a dental assistant in the agency's hospital dental clinic at Fort Bliss,
Texas. Believing that he was the victim of discrimination, appellant
sought EEO counseling and, thereafter, filed a formal EEO complaint.
The agency accepted the complaint for investigation and complied with
all of our procedural and regulatory prerequisites. Subsequently,
appellant requested a hearing before an EEOC Administrative Judge (AJ),
which was held on June 19, 1996. On January 22, 1997, the AJ issued a
recommended decision (RD) finding no discrimination. Thereafter, the
agency adopted the RD and issued a FAD, dated January 29, 1997, finding
no discrimination. It is from this agency decision that appellant
now appeals. On appeal, appellant asserts, among other things, that
the AJ failed to give proper weight to testimony offered on his behalf.
The investigative record reveals that appellant was fully qualified
for the positions at issue. The agency selected two younger,
women (selectees) who also were fully qualified for the positions.
The selecting officials presented credible testimony that appellant's
responses to interview questions portrayed him as less than a "team
player." While appellant asserted that being a team player was not a
valid selection criterion, he failed to show that the selections were
made on a discriminatory basis.
In his RD, the AJ concluded that while appellant established a prima
facie case of sex and age discrimination, he failed to show that the
agency's employment decision resulted from discriminatory animus or that
the agency's actions were pretextual. In this regard, the AJ correctly
concluded that appellant failed to rebut the agency's legitimate,
nondiscriminatory reason for hiring the selectees instead of appellant.
The record indicates that the selectees were as qualified as appellant
for the positions, if not better qualified than appellant. Moreover,
an employer has discretion to choose among equally qualified candidates,
provided the decision is not based upon unlawful criteria. See Texas
Department of community Affairs v. Burdine, 450 U.S. 248, 259 (1981).
While appellant was fully qualified for the position, he failed to
establish that his qualifications were plainly superior to those of
the selectees. Patterson v. Department of the Treasury, EEOC Request
No. 05950156 (May 9, 1996). Finally, appellant failed to establish that
age was a determinative factor in his nonselection; that is, but for his
age he would have been selected. See Loeb v. Textron Inc., 600 F.2d 1003
(1st Cir. 1979); LaMontagne v. American Convenience Products, Inc., 750
F.2d 1405, 1409 (7th Cir. 1984); Bowens v. United States Postal Service,
EEOC Appeal No. 01933155 (July 7, 1994).
After careful review of the entire record, including appellant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, the Commission finds that the AJ's RD
presented the relevant facts, and properly analyzed the appropriate
regulations, policies and laws. The Commission discerns no basis to
disturb the AJ's assessment of the evidence presented or his finding of
no discrimination. Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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. � l6l4.604(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 this 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 this 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 this 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. 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:
March 12, 1999
______________ ____________________________________
Date Ronnie Blumenthal, Director
Office of Federal Operations