01a03105
11-30-2000
Kerry J. Koch, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency) Agency.
Kerry J. Koch v. Department of Defense
01A03105
November 30, 2000
.
Kerry J. Koch,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Logistics Agency)
Agency.
Appeal No. 01A03105
Agency No. DM97121
Hearing No. 170-99-8048X
DECISION
Complainant timely initiated an appeal from the agency's final
order 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. <1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant alleges that the agency discriminated against him on the
basis of disability when the agency non-selected him for the position
of Transportation Assistant (GS-2102-07) in April 1997.
For the following reasons, the Commission AFFIRMS the agency's final
order. The record reveals that complainant filed a formal EEO complaint
with the agency on July 16, 1997, alleging that the agency discriminated
against him because of his chemical dependency/alcoholism.
The agency initiated an investigation. At the conclusion of the
investigation, complainant was provided a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
The AJ issued a decision without a hearing, finding that complainant
failed to establish discrimination. The agency concurred with the AJ's
finding of no discrimination and issued a final order fully implementing
the AJ's decision. From this final order, complainant now appeals.
BACKGROUND
The record reveals that complainant, a Packer Leader, at the agency's
Defense Depot Susquehanna in New Cumberland, Pennsylvania, voluntarily
received in-patient treatment for chemical dependency/alcoholism
for approximately twenty-five days during December 1993. In 1994,
complainant's position at the agency was declared �excess� due to the
agency's downsizing.
In an effort to secure another position at the agency, complainant applied
for the position of Transportation Assistant, GS-2102-07. The Chief
of the Hazardous Operations Branch (CHO) was the selecting official.
CHO interviewed three candidates for the position, including complainant.
When CHO selected another candidate for the position, complainant filed
the instant complainant. The agency argues that the selectee had superior
qualifications for the position. According to CHO, the selectee had vast
knowledge and direct vendor delivery experience. CHO further indicated
that she was personally familiar with the high quality of the selectee's
work. CHO points out that she did not know that complainant was disabled
or that he received treatment for chemical dependency/alcoholism.
FINDINGS AND ANALYSIS
EEOC Regulation 29 C.F.R. � 1614.109(g) authorizes AJs to issue decisions
without a hearing where the material facts are not in genuine dispute
and there is no genuine issue as to credibility. In the case before
us, we find that the AJ was correct in concluding that there were no
genuine dispute of the material facts and there was no genuine issue as
to credibility.
We assume for the purpose of this analysis that complainant is a qualified
individual with a disability. We also note that our review of the AJ's
determination is de novo. See Equal Employment Management Directive for
29 C.F.R. Part 1614 (E EO-MD-110), 9 -16 (November 9, 1999). Since the
instant complaint involves an allegation of disparate treatment and
since the agency articulates a legitimate nondiscriminatory reason for
not selecting complainant, it is complainant's burden to demonstrate by
a preponderance of the evidence that the agency's non-selection was based
on prohibited considerations of discrimination, that is, its articulated
reason for its action was not its true reason but a sham or pretext
for discrimination. Texas Department Of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S 502
(1993).
In a non-selection case, pretext may be demonstrated by a showing that
complainant's qualifications are observably superior to those of the
selectee. Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981); Williams
v. Department of Education, EEOC Request No. 05970561 (August 6, 1998).
Having considered the evidence of record, we find that complainant has
not established pretext. Specifically, we note that complainant has
not offered any evidence that his qualifications for the position were
"observably superior" to those of the selectee.
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 order.
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
November 30, 2000
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.