Gene P. Filippelli, Complainant,v.John Ashcroft, Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity CommissionDec 12, 2003
01A24775_r (E.E.O.C. Dec. 12, 2003)

01A24775_r

12-12-2003

Gene P. Filippelli, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.


Gene P. Filippelli v. Department of Justice

01A24775

December 12, 2003

.

Gene P. Filippelli,

Complainant,

v.

John Ashcroft,

Attorney General,

Department of Justice,

(Federal Bureau of Prisons),

Agency.

Appeal No. 01A24775

Agency No. P-00-0028

Hearing No. 310-A0-5386X

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. The appeal

is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,

the Commission affirms the agency's final order.

Complainant, a former chaplain with the Federal Bureau of Prisons,

filed a formal EEO complaint on October 16, 1998, alleging that the

agency discriminated against him on the basis of religion (International

Ministerial Fellowship) when the agency failed to select him for a

Federal Bureau of Prisons chaplain position.

At the conclusion of the investigation, complainant received a copy of the

investigative report and requested a hearing before an EEOC Administrative

Judge (AJ). Following a hearing, the AJ issued a decision finding no

discrimination.

The AJ concluded that complainant established a prima facie case of

discrimination based on religion. However, the AJ further concluded that

the agency articulated legitimate, nondiscriminatory reasons for its

actions that were not persuasively rebutted by complainant as pretext.

The agency's final order implemented the AJ's decision.

The record reveals that complainant previously served as a Bureau of

Prisons chaplain. Complainant subsequently resigned from the agency

in 1995. In January 1998, complainant applied for reinstatement as a

chaplain. In support for his application for reinstatement, complainant

submitted a Certificate of Ordination issued by the International

Ministerial Fellowship (IMF), which stated that "we certify that

upon request and recommendation of the University United Methodist

Church, Syracuse, New York, and after satisfactory examination by us,

[the complainant] was solemnly ordained." The Regional Chaplaincy

Administrator reviewed complainant's application.

In his hearing testimony, the Regional Chaplaincy Administrator testified

that the Bureau of Prisons requires an ordination certificate, a valid

ordination certificate, and an endorsement from a faith community for

chaplain positions. The Administrator said that when he reviewed

complainant's certificate of ordination, he noticed that although

the certificate was issued by IMF, it stated that the University

United Methodist Church was recommending that complainant be ordained.

"I found it unusual or I was curious as to why the United Methodist

Church was requesting that another organization ordain someone when

I know the United Methodist Church ordains their own people," he

testified. The Administrator testified that he called the University

United Methodist Church to verify complainant's ordination credentials.

"The pastor became very upset and said that he had never heard of the

organization International Ministerial Fellowship, that he had never

heard of complainant and that they�his church had in no way, shape,

or form requested or recommended that this ordination certificate

be issued, and he followed that up with a letter stating that," the

Administrator testified. The Administrator stated that he did not ask

the United Methodist pastor to check under the name Gene Phillips.

The Administrator further stated that he screened complainant's

application out of the selection pool because he could not be verified

by the cited church as recommended for the position.

The Chaplain Administrator testified that as the approving official for

chaplain applications, she decided to close complainant's application

because the United Methodist Church did not recognize nor in any way

claim to have had any involvement with complainant's ordination.

In his testimony, complainant explained that when he was first ordained

in 1981 by the United Methodist Church, he went by the name of Gene

Paul Phillips. Complainant stated that if the Regional Chaplaincy

Administrator had checked under the name of Phillips instead of Filipelli,

he would have seen that he was once affiliated with the United Methodist

Church. Complainant further alleged that he had personal conversations

with agency officials before he submitted his application that gave

him the impression that they thought IMF was "a mail order religion,"

"an illegitimate religion."

The record contains a letter from the Senior Pastor of University United

Methodist Church to the Regional Chaplain dated June 25, 1998. In the

letter, the Pastor stated the following, in pertinent part:

Per our conversation of yesterday, June 24, 1998, I have indicated that

I am not familiar with the person you named, Paul Filippelli.

I do not know Mr. Paul Filippelli, I have never heard of him. To the best

of my knowledge University United Methodist Church has never recommended

a person by that name for the ministry.

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.

The AJ found that the agency proferred legitimate, non-discriminatory

reasons for not selecting complainant that were not persuasively rebutted

by complainant as unlawful religious discrimination. The agency responded

that complainant was not selected for the chaplain position because the

church cited on his certificate of ordination responded that it did not

know complainant and did not recommend him for any type of ministry.

Complainant responded that the agency should have inquired about him

using the name "Gene Paul Phillips," instead of "Gene Filippelli."

However, while one could speculate that the church may have given

a different response if the agency had inquired about "Gene Paul

Phillips," we find that this is insufficient to establish pretext in

this circumstance. We conclude that the agency had a reasonable basis to

conclude that complainant falsified his ordination certification after the

cited church vehemently denied knowing complainant and having any type of

relationship with IMF.<1> We further note that complainant maintains that

the agency had a bias against persons who received ordinations through

the mail. We find that the preponderance of the evidence supports the

conclusion that the agency did not select complainant because University

United Methodist Church was unable to verify the information claimed on

his certificate of ordination, not because he received his ordination

certificate through the mail. Consequently, we find that there is

substantial evidence in the record to affirm the AJ's decision finding

no discrimination.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the agency's

final order.

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

_December 12, 2003_________________

Date

1We note that the record reveals that complainant ended his ministry

with the United Methodist Church in 1983.