01A43511_r
01-13-2005
Bruce B. Howard, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Bruce B. Howard v. Department of Transportation
01A43511
January 13, 2005
.
Bruce B. Howard,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A43511
Agency No. 3-03-3082
Hearing No. 110-2003-08519X
DECISION
Complainant filed an appeal with this Commission concerning his
complaint of unlawful employment discrimination. According to the
agency's decision, complainant alleges discrimination based on age (date
of birth: April 23, 1948) when he was not selected for the position
of Airway Transportation System Specialist, FV-2101-1, at the Myrtle
Beach, South Carolina Airways Facilities System Support Center (SSC)
on February 20, 2003, which was advertised under Vacancy Announcement
AS0-AAF-03-B640-67219.
Following a hearing, an EEOC Administrative Judge (AJ) issued a
decision on March 16, 2004, finding that complainant had not been
discriminated against. Specifically, the AJ found that the agency
presented a legitimate, nondiscriminatory reason for its actions, which
complainant failed to rebut.
On March 25, 2004, the agency issued a decision finding no discrimination.
The agency fully implemented the AJ's decision. Thereafter, complainant
filed the instant appeal.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
We find that the agency articulated a legitimate, nondiscriminatory reason
for the nonselection. Specifically, every member of the recommendation
panel testified at the hearing that their decision not to advance
complainant's bid package to the final selection list was based on what
they perceived to be qualitative and quantitative shortcomings in his
package relative to the packages of the more "successful" candidates.
The Supervisory Airways Transportation Systems Specialist, the Selecting
Official, testified that he selected the selectee based on the panel's
recommendation and his interview with the selectee's supervisor.
Complainant failed to rebut the agency's articulated legitimate,
nondiscriminatory reason for the nonselection. Furthermore, complainant
failed to show that his qualifications for the position were plainly
superior to the selectee's qualifications or that the agency's action
was motivated by discrimination. Moreover, complainant failed to show,
by a preponderance of the evidence, that he was discriminated against
on the basis of age.
Complainant also alleged that the non-selection was based on retaliation.
Prior to the hearing, the agency dismissed the basis of retaliation for
failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). The AJ
concurred with the agency on the grounds that complainant was, in the
retaliation claim, challenging the implementation of a union grievance.
The Commission finds that complainant has failed to claim or show that
he engaged in prior protected activity. Therefore, we find that the
claim of retaliation is properly dismissed for failure to state a claim.
The agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 13, 2005
__________________
Date