0120070962
09-27-2007
Martin Wells, Complainant, v. Robert M. Gates, Secretary, Department of Defense (Defense Logistics Agency), Agency.
Martin Wells,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120070962
Agency No. GA040171
Hearing No. 120200500380X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's November 6, 2006 final order 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.
In his formal complaint of May 24, 2004, complainant claimed
discrimination based on reprisal for prior protected EEO activity
when he was not selected for one of two slots for the position of
Strategic Alliance Manager, GS-14 (SAM), in February 2004. Following an
investigation, complainant sought a hearing before an EEOC Administrative
Judge (AJ). The AJ held a hearing on three days in August 2005, and
issued a decision on October 16, 2006. The agency adopted the AJ's
decision, finding it did not discriminate against complainant.
At the time of the events herein, complainant was a SAM, GS-13 (formerly
Procurement Analyst), at the Defense Supply Center in Richmond, VA.
The selecting official, complainant's immediate supervisor (SO),
selected two employees from among nine candidates, including complainant;
complainant challenged the choice of one selectee (E1), claiming that she
was pre-selected and that he was more qualified. The SO, other managers,
and E1 denied that she was pre-selected or previously contacted about
the position. The AJ found that, even if E1 had been pre-selected,
she was better qualified than the complainant based on her experience,
abilities, and skills.2 In addition, he held that complainant was
"disingenuous in his reprisal claim," in that, he purposely notified
SO about his prior activity, which SO would not have known about in the
regular course of business.3 AJ, p. 10.
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;
an AJ's conclusions of law are subject to a de novo standard of review,
whether or not a hearing was held. In Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253, 259 (1981), the Supreme Court
held that, in the absence of evidence of a discriminatory motivation,
an employer generally "has discretion to choose among equally qualified
candidates...." Complainant has not shown that the disparities in
qualifications are "of such weight and significance that no reasonable
person, in the exercise of impartial judgment, could have chosen the
[selectee] over [him] for the job in question." Ash v. Tyson Foods,
Inc., 190 Fed.Appx. 924, 88 Empl. Prac. Dec. P 42,608 (11th Cir. 2006),
cert. denied, 127 S.Ct. 1154 (Jan. 22, 2007).
After a review of the record in its entirety and consideration of
all statements submitted on appeal, including those not specifically
addressed, it is the decision of the Equal Employment Opportunity
Commission to affirm the final agency order because the Administrative
Judge's ultimate finding, that unlawful employment discrimination was not
proven by a preponderance of the evidence, is supported by the record.
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
____9/27/07______________
Date
1 We affirm the AJ's dismissal of agency Nos. GA05001 and GA05003 for
failure to state a claim on August 1, 2005.
2 Pre-selection does not violate Title VII when it is based on the
qualifications of the selectee and not on some basis prohibited by
Title VII. Goostree v. State of Tennessee, 796 F.2d 854, 861 (6th
Cir. 1986).
3 Complainant's prior EEO activity consisted of an informal complaint
filed in November 2003, wherein complainant remained anonymous; he
withdrew the informal complaint within a short period; and the EEO
counselor had not contacted the SO.
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0120070962
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070962