01a54370
09-19-2005
Kevin L. Voigt, Complainant, v. Alberto Gonzales, Attorney General, Department of Justice, Agency.
Kevin L. Voigt v. Department of Justice
01A54370
September 19, 2005
.
Kevin L. Voigt,
Complainant,
v.
Alberto Gonzales,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A54370
Agency No. P-2004-0090
Hearing No. 260-2004-00158X
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. According to the agency's
decision, complainant alleges discrimination on the basis of age (over
40) when, on October 31, 2003, he was not selected for the position of
Safety Manager, GS-12.
Following a hearing, an EEOC Administrative Judge (AJ) issued a
decision on March 31, 2005, finding that complainant had not been
discriminated against. Specifically, the AJ found that the agency
presented a legitimate, nondiscriminatory reason for its actions, which
complainant failed to rebut.
On May 17, 2005, the agency issued a decision finding no discrimination.
The agency fully implemented the AJ's decision. Thereafter, complainant
filed the instant appeal.
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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
We find that the agency articulated a legitimate, nondiscriminatory reason
for the nonselection. Specifically, the Deputy Regional Director stated
that he made the selection after conferring with the Regional Director for
the North Central Regional Office and the Warden of the Federal Medical
Center in Rochester Minnesota. The Deputy Regional Director indicated
that he selected the selectee because the selectee had a degree in General
Education and a Bachelor of Science degree in Fire and Safety Engineering,
Industrial Safety and Risk Management. The Deputy Regional Director
reported that the selectee had far more education than complainant, who
attended a technical college. The Deputy Regional Director testified
that he was seeking the best qualified applicant based on education and
experience. The Deputy Regional Director said that the selectee had a
�great mixture� of education and experience and that he believes that a
college education teaches management skills. The record revealed that
the selectee had two years of working experience as a Safety Manager
and five years of experience working at the United States Penitentiary.
The Regional Director stated that complainant was not as qualified as
selectee to be a manager because the selectee brought more experience and
knowledge to the position. The Regional Safety Administrator reported
that the selectee had a degree in Fire Safety and had also worked in
three or four institutions in safety. The Regional Safety Administrator
stated that the selectee was more rounded because he had worked in
several different areas.
The Warden also determined that the selectee was the better candidate
because the selectee had experience working in different institutions
and could bring a more �well rounded� experience to the position.
Complainant failed to rebut the agency's articulated legitimate,
nondiscriminatory reasons for the selection decision. Furthermore,
complainant has failed to show that his qualifications for the position
of Safety Manager were plainly superior to the selectee's qualifications
or that the agency's action was motivated by discrimination. Moreover,
complainant has failed to show, by a preponderance of the evidence,
that he was discriminated against on the basis of age.
The agency's decision finding no discrimination is AFFIRMED.
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
September 19, 2005
__________________
Date