Clarence Doster, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMar 10, 2005
01a41158 (E.E.O.C. Mar. 10, 2005)

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