01972174
03-10-1999
Frank Ranft, Appellant, v. Secretary, Department of the Army, Agency.
Frank Ranft v. Department of the Army
01972174
March 10, 1999
Frank Ranft, )
Appellant, )
) Appeal No. 01972174
v. ) Agency No. GHCTF-09408E0200
) Hearing No. 280-95-4362X Louis Caldera,
)
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of the Age Discrimination in Employment Act (ADEA) of 1967,
as amended, 29 U.S.C. �621 et seq. The Final Agency Decision (FAD) was
received on December 16, 1996. The appeal was postmarked on January 9,
1997. Accordingly, the appeal is timely, (see 29 C.F.R. �� 1614.402(a)and
1614.604(b)), and is accepted in accordance with EEOC Order No. 960.001.
Appellant filed a formal EEO complaint alleging he was discriminated
against
on the basis of his age (DOB 11/17/31) when: (1) he was non-selected
for the position of Civil Engineer, GS-810-11/12, in the Engineering
Division, Geotechnical Branch, Geoenvironmental Section (ED-GN) and; (2)
he was subsequently appointed to a position of Civil Engineer, GS-810-12,
in the Engineering Division, Toxic and Hazardous Waste Management Branch,
Special Project Section (ED-HM), as [appellant] alleges he would not
have been terminated on June 15, 1994 had he been placed in [the ED-GN
position]. <1>
Following the agency's investigation, a hearing took place before an
administrative judge (AJ) who subsequently issued a recommended decision
of no discrimination. The agency, thereafter, adopted the AJ's findings
and recommendation. It is from this decision that appellant now appeals.
The record reveals that at the time the instant matter arose, appellant
was employed as a GS-12, Civil Engineer, with the Department of Army,
Kansas City District, Corps of Engineers (agency). On April 8, 1992,
the agency issued a Job Opportunity Announcement for the position of Civil
Engineer, GS-810-11/12. The agency had authority to hire select veterans
over non-veterans for this position. Appellant and ten other individuals
applied for the position. P1, a personnel official, was responsible for
ranking the applicants. P1 rated the top five applicants as follows:
(1) A1 (DOB 6/12/49 and a veteran), 102 points; (2) A2 (DOB 2/23/31 and
a non-veteran), 100 points; (3) A3 (DOB 12/20/36 and a non-veteran),
100 points; (4) A4 (DOB 10/27/52 and a non-veteran), 99 points; and
(5) appellant (DOB 11/17/31 and a veteran), 98 points. P1 prepared a
referral and selection register. P1 was only required to list the top
three candidates.
P1 placed the top three applicants and two individuals (non-veterans) who
were eligible to be transferred into the position from the U.S. Aviation
Systems Command on the referral and selection register. P1 then forwarded
the register to the selecting official (SO) (DOB 9/28/55). SO chose A1
for the position, since he was highly qualified and was the only veteran
listed on the register.
Approximately 11 months after the selection of A1, the U.S. Office of
Personnel Management (OPM) notified the agency that A1's selection did
not comply with the veteran preference regulations. P1 had mistakenly
given A1 a five-point veteran's preference.<2> P1 had misinterpreted
the regulations. OPM directed P1 to either terminate A1 or offer
the position to the individual who was misplaced by A1's selection.
The agency retained A1 and contacted the candidates who ranked two,
three and four. Each applicant was not interested in the position.
P1 then contacted appellant who ranked fifth and discovered that he
was still interested in the position. Appellant was then placed in the
position of Civil Engineer (GS-12) in the Environmental Branch (ED-HM).
On June 15, 1994, appellant, while still serving his probationary period,
was terminated by his first and second-line supervisors because of his
poor written and verbal communication skills, among other deficiencies.
Non-selection
The AJ found that appellant presented a prima facie case of age
discrimination on the non-selection claim. The AJ found that appellant
established that he applied for and was qualified for the position at
issue; that despite his qualifications he was not selected; and that
the agency selected an individual outside his protected class.
However, the AJ determined that the agency articulated a legitimate,
non-discriminatory explanation for its non-selection and appellant
failed to show that the articulated reason was pretextual or that the
true reason for the non-selection was motivated by age. Specifically,
the AJ noted that the agency presented sufficient evidence that P1 made an
honest mistake in attributing a veteran's preference to A1. In addition,
the SO failed to consider appellant because he was not on the register.
Appellant presented no specific probative evidence which refuted the
agency's position or indicated that the agency's employment decision
was motivated by age.
Placement into the ED-HM Position
The AJ determined that appellant failed to establish a prima facie case
of age discrimination regarding his appointment to the ED-HM position and
his subsequent termination. Specifically, the AJ found that appellant
failed to show that he was treated differently than any similarly
situated employee outside his protected class. In addition, the record
indicates that according to appellant's experience, as indicated on his
Form SF-171, he was well qualified to perform the minimum requirements
of the ED-HM position, but failed to meet those requirements. Moreover,
appellant presented no specific probative evidence which refuted the
agency's position or indicated that the agency's employment decision
was motivated by age.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that the AJ's recommended decision properly analyzed appellant's complaint
as a disparate treatment claim. See McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-56 (1981);
Loeb v. Textron, Inc., 660 F.2d 1003 (1st Cir. 1979). The Commission
concludes that, in all material respects, the AJ accurately set forth the
facts giving rise to the complaint and the law applicable to the case.
We further find that the AJ correctly determined that appellant failed
to establish discrimination based on age. Since appellant offered no
additional persuasive evidence or argument in support of his claim on
appeal, we discern no legal basis to reverse the agency's finding of no
discrimination. Accordingly, it is the decision of the Equal Employment
Opportunity Commission to AFFIRM the agency's final decision finding no
discrimination.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
3/10/99
_______________ _______________________
DATE Ronnie Blumenthal, Director
1 The issue as phrased by the administrative judge with concurrence of
the parties.
2 A1 had served in the U.S. Air Force as a colonel. However, the
veteran's preference rules indicate that majors and above are not entitled
to veteran's preference.