0120064787
05-22-2008
James D. Wear, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
James D. Wear,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200647871
Hearing No. 100-2005-00293X
Agency No. 2004-0020-2004102951
DECISION
On August 21, 2006, complainant filed an appeal from the agency's July
21, 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. The appeal is deemed timely and
is accepted for the Commission's de novo review pursuant to 29 C.F.R. �
1614.405(a).
At the time of events giving rise to this complaint, complainant worked as
a Consultant, GS-14, at the agency's VA Central Office in Washington, D.C.
On July 12, 2004, complainant filed an EEO complaint alleging that he
was discriminated against on the bases of race (Caucasian), sex (male),
and age (60) when:
1. on April 19, 2004, he was not selected for the position of Supervisory
Veteran Service Representative, GS-15, announcement number 04-C392-VBA-07,
located in Detroit, Michigan;
2. on May 20, 2004, he was not selected for the position of Director,
GS-15, announcement number 04-20M1-042-VBA, located at the Dakotas
Regional Office; and
3. on May 11, 2004, he was not selected for the position of Assistant
Director, GS-15, announcement number 04-20M1-040-VBA, located at the VA
Central Office in Washington, D.C.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The agency submitted a motion for a decision without
a hearing on May 10, 2006, and complainant submitted his objections on
June 5, 2006. The AJ issued a decision without a hearing on June 29,
2006. In his decision, the AJ found that complainant had established
a prima facie case for each position, on at least one of his claimed
bases each. The AJ further found that the agency provided legitimate,
nondiscriminatory reasons for each of complainant's non-selections, namely
that selectees were better qualified. The AJ concluded that complainant
had not shown himself to be plainly superior to the selectees, nor that
he had evidence of intentional discrimination. He noted that there were
three different selecting panels and three different selecting officials
for the positions in question. The agency subsequently issued a final
order adopting the AJ's finding that complainant failed to prove that
he was subjected to discrimination as alleged.
After a thorough review of the record, and the arguments submitted by
the parties on appeal, we find that the AJ's decision without a hearing
was appropriate, as no genuine issue of material fact is in dispute.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Department of the Army, EEOC Appeal No. 01A04099 (July
11, 2003). We further find that the AJ's conclusion that complainant
has not shown that he was discriminated against based on his sex, race
or age, and the agency's implementation of that decision, was correct,
and we AFFIRM the agency's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
5-22-08
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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0120064787
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064787