0120082937
09-22-2008
Ayyub Anderson, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Ayyub Anderson,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120082937
Agency No. 200J-0506-2007-100766
Hearing No. 471-2007-00157X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 19, 2008 final order concerning his equal
employment opportunity (EEO) complaint alleging 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 Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant alleged that the agency discriminated against him on the bases
of race (African-American) and disability (bilateral flat feet) when:
1. on December 11, 2006, he learned that he was not referred for the
position of PBX Manager under Vacancy Announcement No. 506-92-06; and
2. on October 1, 2006, his position was converted from a WG-10 to GS-9.
The Administrative Judge (AJ) assigned to the case granted the agency's
motion for a decision without a hearing. The AJ found that complainant
had not established a prima facie case. She further found that the
agency had articulated legitimate, non-discriminatory explanations for
its actions. More specifically, the agency explained that pursuant
to a departmental reorganization, complainant was converted from a
WG-10 to a GS-9. The agency noted that complainant actually received a
salary increase as a result of the conversion, and that complainant was
not placed at the newly available GS-12 level (the action at issue in
Claim 1) because he admittedly did not possess a required professional
certification. Finally, the AJ found that complainant had not shown
the agency's proffered explanation to be a pretext for unlawful
discrimination.
After a review of the record in its entirety,1 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 unlawful discrimination occurred.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
September 22, 2008
Date
1 For purposes of its review, the Commission has assumed, without
deciding, that complainant is an individual with a disability within
the meaning of the Rehabilitation Act.
2 On appeal, complainant does not challenge a June 14, 2007 partial
dismissal issued by the agency regarding two other claims (that he
was discriminated against on the bases of race and disability when on
December 6, 2006, he was charged with unauthorized use of a government
vehicle and from February 22, 2003 to the present, he had been harassed).
Therefore, we have not addressed these issues in our decision.
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0120082937
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036