0120091959
08-26-2009
Arthur E. Thomson, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Arthur E. Thomson,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120091959
Hearing No. 530200900471X
Agency No. MINT0804220F
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 19, 2009 final order concerning his
equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Complainant alleged
that the agency discriminated against him on the basis of age (54 years
at time of incident) when:
1. On December 17, 2007, complainant was not selected for the
position of Facilities Management Specialist.
Following the agency's investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The agency submitted an
unopposed motion for a decision without a hearing and on March 16, 2009,
the AJ granted the agency's motion and issued summary judgment finding
no discrimination. Specifically the AJ found that complainant failed to
establish a prima facie case of age discrimination because the selectee
(S), was also over 40 and was not significantly younger than complainant,
being less than five years younger. The AJ next found that, assuming
arguendo that complainant established a prima facie case, the agency
articulated a legitimate, nondiscriminatory reason for its action.
The AJ noted that the selecting official (SO) said that he selected S
"based on his many years of experience preparing statements of work for
contracted construction and maintenance, contractor quality oversight and
legal technician representation for the Contracting Officer. He stated
that [S] possessed a broad range of building, construction, workmanship,
code and maintenance knowledge in various trades." AJ's Decision.
The AJ further found that complainant "conceded that he did not possess
the specialized experience that S did, and that he had never requested
such training. He felt that S had been pre-selected and groomed for the
position, but presented no evidence to support that contention, nor that
such pre-selection was based on age rather than any other factor." Id.
Finally, the AJ found that complainant failed to establish that the
agency's articulated reason was a pretext for discrimination based on age.
The agency subsequently adopted the AJ's decision.
On appeal, complainant presents no new arguments or evidence. After a
review of the record in its entirety, including consideration of
all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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
August 26, 2009
__________________
Date
2
0120091959
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091959