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