01976888
02-04-2000
Michael Testa, Complainant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Michael Testa v. Department of Energy
01976888
February 4, 2000
Michael Testa, )
Complainant, )
) Appeal No. 01976888
v. ) Agency No. 96(161)WAPA
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
on the basis of sex (male) and age (D.O.B: 4/2/47), in violation of
Title VII of the Civil Rights Act of 1964, 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.<0> Complainant claimed he
was discriminated against when he was not selected for the position of
supervisory electrical engineer, GS-850-13/14, at Huron, South Dakota,
or for a similar position at Loveland, Colorado. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the Commission AFFIRMS the FAD.
Following the investigation, complainant requested a final agency
decision (FAD). The FAD concluded that complainant was not subject
to discrimination. It is from this decision that complainant now appeals.
The record reveals that during the relevant time, complainant was
employed as a Project Manager, GS-850-13, at the agency's Billings,
Montana facility.
The FAD concluded that although complainant established a prima facie
case of sex and age discrimination, complainant failed to establish that
the agency's articulated reasons for its actions were a pretext to mask
unlawful discrimination. Specifically, the selecting official concluded
that complainant was not the best qualified candidate for the position,
and that he did not make the final selection list of five candidates.
After a careful review of the record, based on McDonnell Douglas
Corp.v. Green, 411 U.S. 792 (1973), Loeb v. Textron, 600 F.2d 1003 (1st
Cir. 1979), and Prewitt v. United States Postal Service, 662 F.2d 292
(5th Cir. 1981), the Commission finds that the final agency decision
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We note that complainant failed to present evidence
that any of the agency's actions were motivated by discriminatory animus
towards complainant's sex and age. Therefore, the Commission discerns
no basis to disturb the FAD. Accordingly, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 4, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
_________________________
(FOR OFO MERIT CASES) (INTERNAL CIRCULATION ONLY)
INITIAL
DATE
TO: CARLTON M. HADDEN
TO: HILDA RODRIGUEZ
APPEAL NUMBER 01976888
AGENCY NUMBER 96(161)WAPA
REQUEST NUMBER
HEARING NUMBER
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:
TITLE
NAMES
INITIAL
DATE REVIEWED
(ATTORNEY): Gloria J. Norris
11/29/99
(SUPERVISOR): Marjorie Borders
(DIVISION DIRECTOR):
[Division Director (if any)]
COMPLAINANT(S): Michael Testa
AGENCY: Department of Energy
DECISION: AFFIRMED
STATUTE(S) ALLEGED: Title VII; ADEA
BASIS(ES) ALLEGED: GM; OA
ISSUE(S) ALLEGED: A4; P3
WHERE DISCRIMINATION IS FOUND (ONLY):
(A) BASIS(ES) FOR FINDING:
(B) ISSUES IN FINDING:
TYPIST/DATE/DISKETTE GN1/ 11/29/99/ FY2000: P:01976888
SPELL CHECK Yes
TEAM PROOFED
DATE
(CHECK ALL APPLICABLE CODES)
MERIT DECISION
MERIT DECISION (CONTINUED)
X 4A - MERITS DECISION
? 4B - OFO FOUND DISCRIMINATION
LIST BASIS CODES:__________________________________
LIST ISSUE CODES:__________________________________
X 4C - OFO FOUND NO DISCRIMINATION
? 4R - OFO FOUND SETTLEMENT BREACH
? 4S - OFO FOUND NO SETTLEMENT BREACH
? 4E - AGENCY FOUND DISCR./BREACH
X 4F - AGENCY FOUND NO DISCR./BREACH
X 4H - OFO AFFIRMED AGENCY
? 4I - OFO REVERSED AGENCY
? 4J - OFO MODIFIED AGENCY:
? 3P - ADVERSE INFERENCE
(NOTE): IF AFFIRMED IN PART AND REVERSED IN
PART, THEN (3L) CODE REQUIRED IF AT LEAST
ONE ISSUE IS REMANDED.
REVISED - (11/03/99)
? 3L - OFO REMANDED PART OF AGENCY'S MERITS
DECISION. IF BREACH IS BASIS, USE OF (3L) ALSO
REQUIRES (4I) CODE.
? 4K - AJ FOUND DISCRIMINATION
? 4L - AJ FOUND NO DISCRIMINATION
? 4M - AJ MADE NO FINDING
? 4N - OFO AFFIRMED AJ
? 4O - OFO REVERSED AJ
? 4P - OFO MODIFIED AJ
? 3H - OFO DENIED ATTORNEYS FEES
? 3I - OFO APPROVED ATTORNEYS FEES
? 3J - OFO MODIFIED ATTORNEYS FEES
? 4Q - COMPLIANCE
REQUIRED
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 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at WWW.EEOC.GOV.