01983058
06-28-2001
James F. Ray, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
James F. Ray v. Department of Energy
01983058
June 28, 2001
.
James F. Ray,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01983058
Agency Nos. 94-139-HQ-HR; 95-118-HQ-HR
Hearing Nos. 100-96-7959X; 100-96-7960
DECISION
Complainant timely initiated an appeal from the agency's final
decision concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges he was discriminated against on the basis of
disability when: (1) he was not selected for the position of General
Engineer, GS-801-13; and (2) he was not selected for the position of
Mechanical Engineer, GS-830-13.
For the following reasons, the Commission AFFIRMS the agency's final
decision.
The record reveals that complainant, an Electronics Engineer, GS-855-12,
at the Naval Surface Warfare Center (NSWC) in White Oak, Maryland, filed
a formal EEO complaint with the agency on August 31, 1994 and May 23,
1995, alleging that the agency had discriminated against him as referenced
above. The investigative files were consolidated and 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 made the following factual findings. Complainant had worked
for the Department of the Navy since 1988. In March 1994, complainant
applied for a General Engineer, GS-801-13 position with the Department of
Energy's Electric and Hybrid Propulsion Division, advertised in Vacancy
Announcement 93-EE-351A. It was determined by the personnel office
that complainant did not show that he possessed one-year of specialized
experience directly related to the position's duties, including knowledge
and experience in assessing the viability of electric drive system
technologies with an emphasis on automotive propulsion. The personnel
office decided that only one applicant had the necessary specialized
experience. Accordingly, in June 1994 the selectee (C1) was selected.
In March 1994, complainant also applied for a Mechanical Engineer,
GS-830-13 position, which was advertised in Vacancy Announcement
93-EE-441/442A. The position was within the Energy Efficiency and
Renewable Energy office. In February 1995, complainant was informed
that he did not meet the one year of specialized experience that was
directly related to the advertised position's duties. The personnel
office referred nineteen applicants to the selecting official (S1).
S1 selected two applicants (C2 and C3) (no disabilities).
The AJ concluded, inter alia, that complainant failed to establish a
prima facie case of disability discrimination because complainant failed
to prove that the responsible management officials were aware of his
disability. Specifically, the AJ determined that the record established
that complainant did not inform the personnel office or the responsible
management officials about the nature of his disabilities. The only
information accessible to the responsible management officials included:
(1) complainant's SF-171 form which noted that he was �compensably
disabled, less than 30 percent<1>;� and (2) a form letter from the
Veteran's Administration noting that complainant �is in receipt of
disability compensation on account of a service-connected disability rated
at less than 30 percent.� In addition, complainant did not inform the
agency's personnel office or any of the responsible management officials
about the nature of his alleged disabilities. Moreover, the responsible
management officials all testified that they had no information regarding
complainant's alleged disability. Accordingly, the AJ determined that
complainant failed to prove, by a preponderance of the evidence, that
the agency was aware of his disability or perceived him as being an
individual with a disability. See Lester v. Department of Interior,
EEOC Appeal No. 01944102 (January 16, 1996) (holding that complainant
checking the box �Compensably Disabled, more than 30 percent� at the
bottom of his application form does not necessarily disprove testimony
from selecting officials that they had no knowledge that complainant was
disabled); See also, Lewis v. Department of the Treasury, EEOC Request
No. 05910902 (March 12, 1992).
The agency's final decision implemented the AJ's decision.
On appeal, complainant argues, in relevant part, that his disability
was also recorded in the Qualifications Analysis sheet which was part
of the Investigative Report. In addition, complainant
argues that since a key witness did not testify at the hearing, there
was no way of knowing whether she was aware of complainant's disability.
The agency requests that we affirm its final decision.
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).
After a careful review of the record, the Commission finds that the
AJ's decision properly summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. While complainant argues
that the Qualifications Analysis sheet contains information regarding his
disability, the record shows that the information on this form is similar
to that found on the SF-171, which simply answers yes to the following
question: �Does applicant meet the area of consideration requirement
or has he/she specified eligibility for appointment under a special
authority (e.g., veterans, persons with disabilities)?� We find that this
information alone, is insufficient to show that the agency had knowledge
of complainant's disability. Lastly, we find the lack of live testimony
from one witness insufficient to show that the AJ's findings were not
supported by substantial evidence, since numerous witnesses who made
independent determinations regarding complainant's qualifications were
in fact present at the hearing and testified that they had no knowledge
of his alleged disability. Assuming, arguendo, that complainant is
an individual with a disability, under the Rehabilitation Act, we find
substantial evidence in the record to support the AJ's conclusions that
complainant failed to prove that the agency knew of his disability.
Therefore, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
June 28, 2001
__________________
Date
1 The options available included, �non-compensably disabled or Purple
Heart recipient, �compensably disabled, less than 30 percent,� spouse,
widow(er), mother of a deceased or disabled veteran,� or �compensably
disabled, 30 percent or more.�