0120063193
11-06-2007
Charles H. Lingle, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Charles H. Lingle,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01200631931
Hearing No. 310a50422x
Agency No. 5025004
DECISION
On April 28, 2006, complainant filed an appeal from the agency's March
28, 2006 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. The appeal is deemed timely and is accepted pursuant to 29
C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS
the agency's final order.
At the time of events giving rise to this complaint, complainant worked as
a Mechanical Design Engineer at the agency's Forth Worth, Texas facility.
The record reveals complainant worked as a GS-13 Regional Associate
Program Manager (RAPM) for approximately 2 months until his supervisor
(S1) promoted complainant to a temporary position as a GS-14 Systems
Engineer in December 1998. Complainant's promotion was extended beyond
the initial first year. In May 2001, a GS-14 Systems Engineer position
was formally announced, but complainant was not selected for the position.
Instead, S1 selected a younger individual. Complainant alleged that S1
told him that the reason he was not selected was because it was time to
give someone else a chance at the job.
Furthermore, while complainant served in the temporary position,
reorganization took place. At the conclusion of the term of
the temporary promotion, complainant was not returned to his former
position as a RAPM. Instead, the agency created a new GS-14 position,
and added to it new responsibilities. Complainant was returned to a
GS-13 Program Manager position, and a younger individual was selected
for the GS-14 position. Complainant testified that the Program Manager
position did not involve as sophisticated work as his RAPM position.
Complainant did not apply for the newly created GS-14 position.
On October 28, 2001, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of age (D.O.B. 05/12/46) when:
1. on May 29, 2001, he was not selected for the position of Systems
Engineer, under vacancy announcement AWS-AF-01-194-55667; and
2. he was not returned to his former permanent position as RAPM
upon termination of his temporary assignment as Systems Engineer, and
instead was assigned to a position at a lower grade with significantly
less responsibility than his former permanent position as RAPM.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on February 2, 2006,
and issued a decision on March 13, 2006.
In his decision, the AJ found complainant established a prima facie
case of age discrimination when he was not selected for the Systems
Engineer position. However, the AJ found complainant failed to raise an
inference of discrimination with respect to his second claim because he
failed to present evidence of similarly situated individuals who were
treated more favorably under similar circumstances. The AJ also found
that the agency articulated legitimate, nondiscriminatory reasons for
its actions, and complainant failed to prove that those reasons were a
pretext for discriminate against him.
Complainant contends that the agency's reasons for not selecting him
and for not returning him to his RAPM position following the end of his
temporary promotion are a pretext for discrimination. Specifically,
he reiterates that his supervisor told him it was time for someone else
to work in the Systems Engineer position, and cites the EEO Counselor's
Report as proof. He also maintains that his qualifications are observably
superior to those of the selectee, and that the position did not require
the skills used to justify the selection. Complainant argues that S1
has indicated a bias against older people. Complainant argues that
the evidence reveals that S1 improperly created the new GS-14, which is
further evidence of pretext. Finally, complainant also contends that
S1 is not credible, and that the AJ's credibility determination is not
supported by the record.
In response, the agency contends that the position descriptions for the
job in question justify the need for electronic background, and that
complainant failed to prove that his qualifications made him observably
superior to the selectee. The agency also maintains that there is
no evidence of a discriminatory motive, or any other pretext for the
nonselection or the failure to return complainant to his position.
In that regard, the agency argues that a waiver was properly obtained
to create the new position, and further, S1 was not responsible for the
creation of the new GS-14 position.
ANALYSIS AND FINDINGS
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.
After a review of the record, we agree that the AJ's decision finding
no discrimination is supported by substantial evidence in the record.
We do agree with complainant's argument that complainant established an
inference of discrimination on both issues, however, we find the agency's
reasons for its actions are supported by a preponderance of the evidence.
With respect to the nonselection, we find the evidence supports the
agency's desire to select someone with advanced electronics, and indeed,
the agency did do so. Complainant failed to establish, by a preponderance
of the evidence, that his skills made his qualifications observably
superior to those of the selectee. As for his failure to return to his
former position following the end of his temporary promotion, the record
supports the agency's contention that it created a new position, to which
complainant did not apply. Consistent with personnel rules, complainant
was returned to a position in the same grade as his former position.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9,
1999). Although complainant contends that the EEO Counselor's Report
establishes a credibility problem with S1, we disagree. There is no way
to authenticate the identity of the individual who indicated the reason
for the nonselection was to give someone else a turn in the position.
The AJ's assessment of S1's credibility is entitled to deference in this
instance.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final decision.
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
11/6/07
Date
1Due to a new data system, this appeal is being redesignated with the
above referenced appeal number.
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0120063193
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063193