01a43543
08-30-2005
Daniel J. Fitzgerald, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
Daniel J. Fitzgerald v. Department of Justice
01A43543
August 30, 2005
.
Daniel J. Fitzgerald,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A43543
Agency No. P-2001-0130
Hearing Nos. 280-A3-4054X and 280-A3-4055X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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 Commission AFFIRMS
the agency's final order.
The record reveals that complainant, a Correctional Programs Administrator
at the agency's Federal Bureau of Prisons, North Central Region, in
Kansas City, Missouri filed a formal EEO complaint on March 24, 2001.
In his complaint, complainant cited over thirty instances of alleged
discrimination that he requested that the agency use as background in
the instant complaint. By letter dated November 9, 2001, the agency
accepted the following claim: Whether the agency discriminated against
complainant on the bases of race (Caucasian), sex (male), age (D.O.B. July
24, 1949), and reprisal for prior EEO activity when on September 5,
2000, he was not selected for the positions of Warden, at Federal
Correctional Institution, Florence, Colorado. By letter dated December
1, 2001, complainant argued that the agency failed to accept all of the
claims complainant identified in his March 24, 2001 formal complaint.
By letter dated February 25, 2002, the agency advised complainant that
his additional thirty claims of discrimination were dismissed as untimely
pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically, the agency found
that complainant failed to contact an EEO Counselor within 45-days of
the alleged discriminatory non-selections. The agency found that the 30
non-selections mentioned by complainant in his December 1, 2001 letter
occurred from 1998 - 2000. The agency then added the following claims
to the complaint: Whether complainant was discriminated against on
the bases of race (Caucasian), sex (male), age (D.O.B. July 24, 1949),
and in reprisal for prior EEO activity when he was neither selected
for the Associate Warden position at the United States Penitentiary,
Administrative Maximum (ADX), Florence, Colorado nor for the Warden
position at the Federal Correctional Institution, Dublin, California.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On August 6, 2003, complainant submitted a Motion to Amend
Complaint. Complainant requested that the AJ amend his complaint to
include all non-selections for the Warden and Associate Warden positions
from August 31, 2000, through December 6, 2000. The AJ issued an Order
dated June 24, 2003, denying complainant's request to amend his complaint.
The AJ found that the agency properly dismissed complainant's additional
30 claims as untimely raised with an EEO Counselor. Following a hearing,
the AJ issued a decision on February 10, 2004, finding no discrimination.
Specifically, the AJ found that the agency presented legitimate,
nondiscriminatory reason for its actions, which complainant failed to
rebut. The agency, on March 23, 2004, issued a decision fully implementing
the AJ's decision. Complainant now appeals from that 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.
With regard to the dismissed claims, the Commission finds that the AJ
appropriately dismissed the claims for untimely EEO counselor contact
pursuant to 29 C.F.R. � 1614.107(a)(2). All of the timely raised
non-selections were ultimately accepted by the agency. The remainder
of the nonselections occurred more than 45-days before complainant's
contact of an EEO Counselor in October 2000.
With regard to the non-selection claims, we find that the agency
articulated legitimate, nondiscriminatory reason for its actions.
The Regional Director of the North Central Region (Director A), nominated
Selectee A for the Associate Warden position based on his work performance
and experience in correctional services. According to Director A, the
ADX is an extremely complex operation with the requirement that there be
two Associate Wardens. The agency was seeking to hire one Associate
Warden with an extensive correctional services background. Director A
determined that Selectee A's correctional background was superior to
that of complainant. Selectee A served as the Captain at USP Florence
since October 1998 and the Captain at FCI Jessup from August 1996 through
October 1998. Selectee A also received 4 Quality Step increases and 4
Special Act/Time off Awards within the last 5 years. Director A noted that
although complainant performed above expectations, his expertise was not
equivalent to that of Selectee A. With regard to the Warden position,
Director A stated that Selectee B was nominated because he had served as
an Associate Warden since June 1994. Selectee B served as an Associate
Warden at FCI Tallahassee, Florida from June 1994 through June 1996, and
in Florence, CO since June 1996. Additionally, Director A stated that
Selectee B possessed the necessary skills to handle certain staff problems
that had existed at the Federal correctional institute in Florence, CO.
With regard to the Warden position in Dublin, California, it is undisputed
that no applicant was selected for the position. The employee placed in
the position received a hardship reassignment and was non-competitively
reassigned to the position.
Complainant failed to rebut the agency's articulated legitimate,
nondiscriminatory reasons for its actions. Complainant failed to show
that his qualifications for the position were plainly superior to the
selectees' qualifications or that the agency's actions were motivated by
discrimination. Moreover, complainant failed to show, by a preponderance
of the evidence, that he was discriminated against on the bases of race,
sex, age or in reprisal. The AJ's decision is supported by substantial
evidence in the record.
The agency's decision finding no discrimination and dismissing a portion
of the complaint is AFFIRMED.
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
August 30, 2005
__________________
Date