01A24775_r
12-12-2003
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.