01973454
03-03-1999
James Allison, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture Agency.
James Allison, )
Appellant, )
) Appeal No. 01973454
v. ) Agency No. 940317
) Hearing No. 370-96-X3130
Daniel R. Glickman, )
Secretary, )
Department of Agriculture )
Agency. )
)
)
DECISION
Appellant timely initiated an appeal from a final agency decision
(FAD) concerning her/his equal employment opportunity (EEO)
complaint of unlawful employment discrimination on the bases of race
(African-American), sex (male), reprisal (prior EEO activity), and age
(DOB 6/11/37), in violation of Title VII of the Civil Rights Act of
1964, 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.
Appellant alleges he was discriminated against when he was reassigned
from the San Francisco Region Office to the San Bernardino National
Forest. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, appellant, a GS-434-12
Plant Pathologist, was employed by the agency's U.S. Forest Service
(�Service�) in the San Francisco Regional Office. At sometime in the
early 1990's, the Service began plans for reorganization which would
relocate most of its personnel from the regional offices to the field
offices. In late 1992, the plan for the San Francisco Regional Office was
finalized with all but one plant pathologist position being reassigned
to the field offices. In April 1993, appellant was informed that his
position was being reassigned to the San Bernardino National Forest.
Appellant expressed his desire to remain in the regional office, but
learned that his co-worker (�Selectee�) (Caucasian, female, under age 40)
was selected to remain in the regional office.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal complaint on March 12, 1994.
At the conclusion of the investigation, appellant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a Recommended Decision
(RD) finding no discrimination. The AJ concluded that appellant
established prima facie cases of race, sex and age discrimination
because a similarly situated employee, Selectee, was allowed to remain
in the regional office instead of appellant. The AJ then concluded
that the agency articulated legitimate, nondiscriminatory reasons for
its actions, namely, that Selectee's skills were more in line with the
needs of the plant pathologist position within the regional office.
In her pretext analysis, the AJ found that appellant did not meet
his burden of proving discrimination based on race, sex or age by a
preponderance of the evidence. Specifically, the AJ found that while
appellant provided evidence which cast doubt of the agency's articulated
reasons, he ultimately failed to show that the agency's actions were
based on any prohibited motive.<1> The agency's FAD adopted the AJ's RD.
Appellant makes no new contentions on appeal, and the agency requests
that we affirm the FAD.
After a careful review of the record in its entirety, including the
statements submitted on appeal, the Commission finds that the AJ's
RD sets forth the relevant facts and properly analyzes the appropriate
regulations, policies and laws. Nothing proffered by appellant on appeal
differs significantly from the arguments presented at the hearing and
given full consideration by the AJ. Therefore, the Commission discerns
no basis upon which to overturn the AJ's finding of no discrimination
in this matter. In this regard, the AJ made specific credibility
findings which are entitled to deference due to the AJ's first-hand
knowledge, through personal observation, of the demeanor and conduct
of the witnesses. See Esquer v. United States Postal Service, EEOC
Request No. 05960096 (September 6, 1996); Willis v. Department of the
Treasury, EEOC Request No. 05900589 (July 26, 1990). Accordingly, it
is the decision of the Equal Employment Opportunity Commission to AFFIRM
the agency's final decision which adopted the AJ's finding of no sex or
reprisal discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
March 3, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations1 Appellant attacked
the agency's reasons by providing evidence
concerning union seniority procedures, unsound
business decisions, and preselection. However,
none of these are per se violations of the
aforementioned statutes. See Burton v. Department
of the Navy, EEOC Request No. 05950515 (Sept. 19,
1996); Jenkins v. Department of the Interior,
EEOC Request No. 05940284 (Mar. 3, 1995);
McAllister v. United States Postal Service,
EEOC Request No. 05931038 (July 28, 1994).