Kenneth G. Scott, Complainant,v.Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionMay 22, 2007
0120071358 (E.E.O.C. May. 22, 2007)

0120071358

05-22-2007

Kenneth G. Scott, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.


Kenneth G. Scott,

Complainant,

v.

Dr. Francis J. Harvey,

Secretary,

Department of the Army,

Agency.

Appeal No. 0120071358

Agency No. ARHQOSA05AUG10586

Hearing No. 570-2006-00495X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's December 15, 2006 final action 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. Complainant alleged that the agency subjected him to a

hostile work environment on the bases of race (African-American), sex

(male), color (Black), age (D.O.B. 03/02/50), and reprisal for prior

protected EEO activity under Title VII of the Civil Rights Act of 1964

when: (1) he received a Level 4 ("fair") rating for the period of November

1, 2003 to October 31, 2004; and (2) he was not selected for the position

of Traffic Management Specialist, GS-2130-11/12.

The record establishes that complainant was employed by the agency

as a GS-11 Traffic Management Specialist at the agency's Military

Surface Deployment and Distribution Command in Alexandria, Virginia.

Complainant filed formal complaints of discrimination on March 10,

2005 and September 15, 2005. Following the agency's investigation into

complainant's allegations of discrimination, an EEOC Administrative Judge

(AJ) issued a decision without a hearing pursuant to the agency's Motion.

The AJ initially assumed for the purposes of analysis that complainant

established a prima facie case of discrimination and retaliation.

However, the AJ found that the agency articulated legitimate,

nondiscriminatory reasons for its actions, which complainant failed

to show were pretext. Concerning complainant's allegation (1), the

AJ found complainant's performance rater (R1; Native-American female;

age 52) stated that complainant was given the Level 4 rating as he

failed to meet two (2) objectives in his performance rating: monitoring

contractor performance and completing organizational tasks in a timely

and accurate manner.

Regarding allegation (2), R1, the selecting official, stated that the

selectee (female) was more qualified and better suited for the position

due to her extensive knowledge in personal property and transportation,

in addition to managing the program for in-bound household goods,

out-bound household goods, storage and contracts.1 R1 also stated that

the selectee had vast knowledge in transportation of personal property

which far exceeded the qualifications of complainant. The AJ noted that

complainant claimed he was better qualified than the selectee based

in part on his high ratings and daily direct experience with personal

property non-temporary storage and household goods work.

The AJ found, however, that complainant's argument was insufficient to

rebut the agency's articulated reasons for its actions. Regarding the

non-selection for the position at issue, the AJ found that complainant

failed to proffer evidence that his qualifications were superior to

those of the selectee for the vacancy at issue. AJ's Decision at 2.

The AJ also found that complainant failed to prove that the actions by the

agency as alleged by complainant were sufficiently severe or pervasive to

constitute a hostile work environment. On appeal, complainant alleged

that he submitted sufficient evidence to demonstrate R1's hostility

towards him, which led to the adverse actions taken against him.

The agency responded to complainant's appeal, urging the Commission to

affirm the AJ's decision.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the agency's final action,

because the AJ's issuance of a decision without a hearing was appropriate2

and a preponderance of the record evidence does not establish that

discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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

____5/22/07_______________

Date

1 We note that R1 was not a member of a three-person panel which ranked

the applicants for the position at issue. The ranking panel ranked the

applicants based on their abilities, skills and knowledge, and ranked

complainant number 6 out of 34 applicants. The results were sent to R1

in a memorandum dated August 6, 2005, and R1 made the final decision to

chose the selectee based on the recommendations of the ranking panel.

Investigative File at 302-303, 318-323.

2 In the context of an administrative proceeding, an AJ may properly

consider issuing a decision without a hearing only upon a determination

that the record has been adequately developed for summary disposition.

See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,

2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,

2003).

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0120071358

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120071358