0120122529
09-19-2014
Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120122529
Hearing No. 570-2007-00855X
Agency No. CRSD-2006-020-0292
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the EEOC Administrative Judge's (AJ) decision which became the Agency's 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. For the following reasons, the Agency's final order which found that Complainant failed to demonstrate that he was subjected to discrimination is AFFIRMED.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Copier/Duplication Equipment Operator, GS-5 at the Agency's Office of Operations facility in Washington, D.C. On June 29, 2006, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of sex (male) and age (43) when:
1. he was transferred to a different supervisor and building; and
2. his name was not placed on the certificate of eligibles for the position of Printing General Foreman XS-440-11 and therefore he was not forwarded to the Selecting Official.
Following an investigation by the Agency, Complainant requested a hearing before an AJ. A hearing was held on March 7, 2012. The AJ found that Complainant failed to demonstrate that he was subjected to discrimination. Specifically, the AJ found that assuming arguendo that Complainant established a prima facie case of age and sex discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions namely, that with respect to claim no. (1), Complainant was transferred to another supervisor and building at this request and there was no change to his grade, title, pay, and/or duties. With respect to claim no. (2), the AJ found that Complainant was not placed on the certificate of eligibles because he was not qualified for the position. The position required supervisory experience and Complainant did not have that required component so therefore he was not placed on the best qualified list. The AJ noted that the female employee selected for the position had supervisory experience and went through the interview process. The AJ found that Complainant failed to show that the Agency's articulated nondiscriminatory reasons were pretext for discrimination. Therefore, the AJ held that Complainant failed to demonstrate that he was subjected to discrimination. The Agency did not provide a final order so Complainant appealed from the AJ's decision.1
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he did not ask to be moved to a different location. Instead he maintains that his supervisor wanted to move him because she thought Complainant was removing property from his location and had behavioral issues towards customers. Further, Complainant contends that with respect to the position he had supervisory experience as he trained new security officers for assignments.
The Agency did not provide a brief.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final order. We agree with the AJ that even if we assume arguendo that Complainant established a prima facie case of discrimination as to sex and age, the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant failed to show that the reasons were pretext for discrimination. We find that on appeal, other than Complainant's conclusory statements, he has provided no evidence that discriminatory animus was involved. Specifically, Complainant contends that he was transferred not because he requested it but because his supervisor thought he was removing property and that he had bad customer service. Assuming for the sake of argument that this were true, we find no evidence that his supervisor's beliefs were based on a desire to discriminate against him based on age or sex.
Further, with respect to claim no., 2, Complainant acknowledges that the Agency looked at his experience and rated his supervisory experience 1 out of 4. While Complainant was rated "Outstanding" in his performance appraisals, the position required applicants to carry out evaluating the work of employees on a daily, weekly, or monthly basis to assure the production and accuracy requirements were met. Additionally, referred applicants were required to lead groups of employees in short and long-term projects of a highly technical nature and provide advice and instruction on both work and administrative matters. We find support in the record for the AJ's determination that Complainant's experience did not provide supervisory experience which required him to identify short and long-term projects of a technical nature. The Selectee, however, had a supervisory background, printing foreman experience and both bindery and copying experience. We find that Complainant has failed to show that discriminatory animus was involved with regard to his nonselection for the position. Accordingly, we find the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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
___9/19/14_______________
Date
1 The Agency had 40 days from receipt of the AJ's decision to issue its decision. When no decision was issued by the Agency, the decision of the AJ became the decision of the Agency by operation of law and could be appealed by Complainant.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120122529
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122529