0120081595
05-29-2008
Frank Hooper, Complainant, v. Dirk Kempthorne, Secretary, Department of the Interior, Agency.
Frank Hooper,
Complainant,
v.
Dirk Kempthorne,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120081595
Agency No. LSM0603
Hearing No. 530200600292X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's January 22, 2008 final order concerning his equal
employment opportunity (EEO) complaint alleging employment discrimination
in violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
At the time of the events at issue, complainant, age 56, was employed
by the agency as a Senior Auditor, GS-13, in the Office of Surface
Mining, Division of Compliance Management. The division's primary
mission is to ensure that coal industry companies pay all taxes and fees
required by law. To achieve this goal, the agency conducts audits of
coal companies' books and records to ensure the accuracy of required
fee reports. Complainant had worked as an agency auditor of the coal
industry for approximately seventeen years. Complainant alleged that the
agency discriminated against him on the basis of age (53) when he was
not selected for the position of Supervisory Auditor, GS-14, in January
2006. The selectee for the position in question was 39 years old at the
time of her selection.
After complainant's allegation of discrimination was investigated
by the agency, he requested a hearing before an EEOC Administrative
Judge (AJ). On December 5, 2007, the AJ issued a decision by summary
judgment in favor of the agency, finding that the selecting official
articulated legitimate, nondiscriminatory reasons for the decision made,
which complainant failed to prove was a pretext for discrimination.
The AJ acknowledged complainant's argument that he was better qualified
than the selectee because she did not work for the agency at the time of
her selection. However, the AJ noted that the selecting official stated
that he selected her based on her extensive audit management experience,
ability to learn quickly and people skills. The AJ also independently
compared the qualifications of the complainant and the selectee and
found complainant did not establish that he had superior qualifications.
The AJ noted that complainant was a GS-13 senior auditor with seventeen
years of agency experience, had supervised other auditors ten years prior,
and was not a CPA. The selectee had been a GA-14 auditor since 1999 with
another federal agency, had supervised other auditors from 1999 to 2003,
was a CPA, and receive more positive recommendations from her superiors.
The AJ found that an employer has the discretion to choose between two
equally qualified candidates provided that decision is not based on
unlawful criteria. In sum, the AJ concluded that complainant failed to
prove, by a preponderance of the evidence, that age was a factor in the
selection decision.
On January 22, 2008, the agency issued its final order, fully implementing
the AJ's decision. The instant appeal followed.
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,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred. The evidence supports the
AJ's finding that the agency articulated legitimate, nondiscriminatory
reasons for not selecting complainant for the position at issue.
Further, the record supports the finding that complainant failed to
proffer adequate evidence to show that the agency's articulated reasons
were a pretext for discrimination.
Accordingly, the agency's final action fully implementing the AJ's
decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 29, 2008
__________________
Date
2
0120081595
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120081595