01a41158
03-10-2005
Clarence Doster, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Clarence Doster v. Department of the Army
01A41158
March 10, 2005
.
Clarence Doster,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A41158
Agency No. AFBVP10204C080
Hearing No. 230-2003-04016X
DECISION
Complainant initiated an appeal from the agency's final order concerning
his equal employment opportunity (EEO) complaint of unlawful employment
discrimination. For the following reasons, the Commission AFFIRMS the
agency's final order.
The record reveals that complainant, a Logistics Management Specialist,
GS-0346-12 at the agency's Warren, Michigan facility, filed a formal
EEO complaint on April 15, 2002, alleging that the agency discriminated
against him on the bases of race (African American), sex (male), and
reprisal for prior EEO activity when:
On February 13, 2002, complainant learned that he was not selected for the
position of Logistics Management Specialist, GS-346-13, from a priority
consideration referral.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination on September 29, 2003.
The AJ concluded that complainant failed to establish a prima facie case
of race, sex or reprisal discrimination. Specifically, the AJ found
that complainant failed to demonstrate that similarly situated employees
not in complainant's protected classes were treated differently under
similar circumstances when complainant was not selected for the position
of Logistics Management Specialist, GS-346-13, in the Heavy Combat Unit,
Commodity Business Unit. The AJ expressly noted that complainant's
claim was not regarding the competitive process, but a claim that the
agency failed to give complainant priority placement consideration.
In determining that complainant was not denied priority consideration, the
AJ found credible the testimony of the selecting official, who testified
that he was given complainant's name and resume to consider first, and
that the selecting official considered complainant's qualifications and
his official personnel file, prior to his consideration of any candidate
on the agency's referral list. The AJ found that the selecting official
determined after a review of complainant's resume, that complainant
lacked specific experience in four areas, including National Maintenance
Management, Single Stock Fund, On-Line Supply Control Studies and Army
Working Capital Fund budget stratification process. Upon finding that
complainant did not have the requisite experience, the AJ found that
the selecting official, who had no knowledge of complainant's prior EEO
activity, did not select complainant for the position and thereafter
requested the agency's referral list of candidates from which he selected
another candidate.
The AJ noted that the agency has the discretion to choose among equally
qualified candidates and while complainant was not challenging the
competitive selection process, the AJ noted that complainant failed
to show that his qualifications were observably superior to those of
the selectee. Specifically, the AJ found the evidence showed that the
bulk of complainant's experience was in the area of Light Armored Vehicle
Marine Corps projects, and not in National Maintenance Management, as the
selecting official desired. The agency's final order dated November 13,
2003, implemented the AJ's decision.
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 careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note
that complainant failed to present evidence that any of the agency's
actions were in retaliation for complainant's prior EEO activity or were
motivated by discriminatory animus toward complainant's race or sex.
We discern no basis to disturb the AJ's decision.
The Commission AFFIRMS the agency's final order finding no discrimination.
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
March 10, 2005
__________________
Date