Jeffery C. Mones, Complainant,v.Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionMar 23, 2001
01991414 (E.E.O.C. Mar. 23, 2001)

01991414

03-23-2001

Jeffery C. Mones, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.


Jeffrey C. Mones v. Department of the Navy

01991414

March 23, 2001

.

Jeffery C. Mones,

Complainant,

v.

Robert B. Pirie, Jr.,

Acting Secretary,

Department of the Navy,

Agency.

Appeal No. 01991414

Agency No. 96-00187-024

Hearing No. 120-97-4451X

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 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. Complainant

alleges he was discriminated against on the bases of his race (Asian),

color (brown), and sex (male) when he was not selected for the position of

Supervisory Chemist, GS-1320-12. Complainant also alleged discrimination

based on reprisal (prior EEO complaint activity) when his closeout rating

of March 31, 1996, was downgraded from �Exceeds Fully Successful� to

�Fully Successful.�

For the following reasons, the Commission AFFIRMS the agency's final

decision.

The record reveals that complainant, a GS-11 Chemist filed a formal

EEO complaint with the agency on July 2, 1996, alleging that the agency

had discriminated against him as referenced above. 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 race,

color, and sex discrimination with regard to his nonselection because the

selectee was outside his protected classes. However, the AJ concluded

that the agency articulated legitimate, nondiscriminatory reasons for its

actions, namely, that the selectee had scored higher on the Knowledge,

Skills and Abilities section, had prior supervisory experience and

was judged to be a better communicator than complainant. The AJ

found that complainant did not establish that more likely than not,

the agency's articulated reasons were a pretext to mask unlawful

discrimination/retaliation. In reaching this conclusion, the AJ found

that complainant had not shown that race, color or sex were considered

in the selection, that he was the superior candidate or that a nexus

existed between the protected activity and the changed rating.

With regard to complainant's performance rating issue, the AJ found that

complainant failed to establish a prima facie case of reprisal because

the changed rating was the result of a calculation error, which also

affected two other employees. See McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine,

450 U.S. 248 (1981); see also Washington v. Department of the Navy,

EEOC Petition No. 03900056 (May 31, 1990).

The agency's final decision implemented the AJ's decision. On appeal,

complainant restates arguments previously made at the hearing.

In response, the agency restates the position it took in its FAD, and

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. We note that complainant

failed to present evidence that any of the agency's actions were in

retaliation for complainant's prior EEO activity or were motivated

by discriminatory animus toward complainant's race, color and sex.

We discern no basis to disturb the AJ's decision. 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 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 (R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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

March 23, 2001

__________________

Date