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