0120122517
09-23-2014
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120122517
Hearing No. 430-2011-00150X
Agency No. 096339400382
DECISION
On May 24, 2012, Complainant filed an appeal from the Agency's April 27, 2012, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether the EEOC Administrative Judge's (AJ) finding of no discrimination after a hearing was supported by substantial evidence in the record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked Administrative Technical Specialist4, NT-0343-04, at the Naval Surface Warfare Center, in Port Hueneme Division, Virginia Beach Detachment, in Virginia Beach, Virginia.
On February 19, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and age (53) when he was not selected for the position of Deputy Site Director, NT-05, Virginia Beach Detachment, Naval Surface Warfare Center, Port Hueneme Division.
At the conclusion of the investigation, the Agency provided Complainant 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 January 31, 2012, and issued a decision on March 22, 2012.
The AJ found that both Complainant and the Selectee were both within the same protected class with regard to age, however, Complainant was older. The Selectee was female. The AJ found that Complainant established a prima facie case of age and sex discrimination.
The AJ found that the Agency proffered legitimate, nondiscriminatory reasons for its actions. Specifically, the Agency provided that Complainant was not hired for the position because he was not the best qualified candidate. Specifically, the Agency presented evidence that the selectee was well qualified for the job and was currently and successfully performing all the required duties of the job (many of which she volunteered to perform in her former position). The selectee was chosen because of her "superior experience with the necessary site management skills and knowledge of administrative support functions." The selectee demonstrated on her resume and during her interview that "she fully understands the many aspects of site management ... has been responsible for developing processes, executing tasking or managing personnel in all the functional areas of interest."
The Agency did not hire Complainant because he did not possess the same attributes as the selectee. The Agency argued that "Complainant was not well rounded in his experience with administrative and site management functions." Rather, Complainant's experience was generally in the area of finance. Complainant did not demonstrate recent experience (during the interview, rather, he referenced experiences that occurred approximately 15 years prior) in areas such as contracting, purchasing, safety, security and environmental compliance and much of which was gained in private sector employment.
The AJ further found that there was no persuasive evidence that he was better qualified for the job at hand than Complainant. Further the AJ found that there is no persuasive evidence to support pretext with regard to sex or age. The AJ concluded that instead, the evidence supports that the Agency needed leadership in areas that were unassigned to specific positions; the selectee volunteered to take on those responsibilities; she successfully performed those responsibilities under the guidance of the selecting official; the Agency determined the need for a funded position to charge these duties to and created a deputy site manager position. The Agency determined that the best candidate was the employee who was currently performing the duties.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant did not submit any brief on appeal.
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.
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, at � VI.B. (November 9, 1999).
We find that the record demonstrates that the AJ's decision was supported by substantial evidence in the record. The AJ determined that Complainant's assertions that the Agency preselected the Selectee were without merit. Further, the AJ found that Complainant failed to demonstrate that his qualifications were plainly superior to those of the selectee. As such, we find that Complainant failed to demonstrate that he was discriminated against as alleged.
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 order adopting the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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
with the Court 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
___9/23/14_______________
Date
2
0120122517
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122517