0120064889
05-01-2008
Herbert Watkins, Complainant, v. Samuel W. Bodman, Secretary, Department of Energy, Agency.
Herbert Watkins,
Complainant,
v.
Samuel W. Bodman,
Secretary,
Department of Energy,
Agency.
Appeal No. 01200648891
Agency No. 034832HQ
Hearing No. 100200400864x
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 31, 2006, final order concerning his equal
employment opportunity (EEO) complaint alleging 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.
At the time of these events, complainant worked as a Contracting Officer,
GS-13, located in Washington, DC. He claimed discrimination on the
basis of age (61), race (African-American), and color (black) when: (a)
he was not selected for the position of Lead Contracting Specialist,
GS-14, in June 2003;2 and (b) the initial vacancy posting for the
position was cancelled in February 2003. Following an investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
On February 2, 2006, the AJ conducted a hearing. On July 14, 2006,
the AJ issued a decision, finding that the agency did not discriminate
against complainant.
First, the AJ found that the selecting official, Director, Office of
Headquarters Procurement Services (SO), cancelled the first posting
because of errors in the agency's initial screening by the Office of Human
Resources in applying its Quick Hire processes. The AJ further found
that the agency, through the SO, articulated legitimate, nondiscriminatory
reasons for its selection. Specifically, BL had Level III authority, one
of the qualifications for the position, while complainant did not; and BL
demonstrated knowledge and familiarity with recent legislative reforms
in government contracting, and complainant did not. The AJ found that
complainant failed to present probative evidence to demonstrate pretext.
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. Following a
review of the record in this matter, we find that the decision of the
AJ accurately stated the facts and correctly applied the pertinent
principles of law.
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the agency's final decision, because the AJ's
ultimate finding, that unlawful employment discrimination was not proven
by a preponderance of the evidence, is supported by the record.
Accordingly, the agency's decision 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
__05-01-2008________________
Date
1 Due to a new data system, this case has been redesignated with the
above-referenced appeal number.
2 Two candidates were chosen; however, complainant contested only the
selection of BL (Asian, age 60) and not the selection of SJ (Caucasian,
age 43).
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0120064889
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064889