01a40729
04-20-2005
Nick Zusmer, Complainant, v. Samuel W. Bodman, Secretary, Department of Energy Agency.
Nick Zusmer v. Department of Energy
01A40729
April 20, 2005
.
Nick Zusmer,
Complainant,
v.
Samuel W. Bodman,
Secretary,
Department of Energy
Agency.
Appeal No. 01A40729
Agency No. 01(75)WAPA
Hearing No. 370-A2-X2409
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 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. For the following reasons, the Commission AFFIRMS
the agency's final order.
The record reveals that complainant, a Transmission Chief Dispatcher,
at the agency's Upper Great Plains Region, Watertown Operations Office,
South Dakota facility, filed a formal EEO complaint on June 8, 2001,
alleging that the agency discriminated against him on the bases of age
(D.O.B. 09/08/52) and reprisal for prior EEO activity when:
(1) Complainant's identity and interest in a Power System Dispatcher
position in the agency's Sierra Nevada Customer Service Region was
disclosed which breached his request for confidentiality.
Complainant was not selected for the Power System Dispatcher position.<1>
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a decision
dated September 30, 2003, finding no discrimination. The AJ found that
complainant did not establish that more likely than not, the agency's
articulated reasons were a pretext to mask unlawful discrimination.
The agency's final order dated October 14, 2003, implemented the AJ's
decision and this appeal followed.
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.
The Commission finds that complainant failed to show that the Dispatch
Supervisor breached his request for confidentiality, or that his request
for confidentiality was breached for discriminatory reasons. We agree
with the AJ that complainant failed to show that the Dispatch Supervisor
was on notice that complainant desired confidentiality about his interest
in a position. Furthermore, even assuming complainant's request for
confidentiality was in fact violated, complainant has not shown that this
was as a result of age or retaliation. Rather, the record reveals that
the Dispatch Supervisor did not think favorably of complainant and also
was aware of other Dispatchers unfavorable comments about complainant.
With regard to the nonselection claim, the agency articulated a
legitimate, nondiscriminatory reason for not selecting complainant.
Following the close of the Vacancy Announcement, the Regional Trainer
was given the application packages for review. The Regional Trainer
submitted the name of four applicants who he believed were qualified and
submitted complainant's name as a non-competitive eligible. A five-member
panel convened to interview the applicants. All those interviewed
were asked the same questions by the panel members who ascribed point
values to each answer. Complainant was ranked fourth out of the five
candidates interviewed. The reason given for complainant's low score
was his poor response to communication and team work skill questions.
The interview panel noted that although complainant scored well on
the technical portions of the interview, complainant's non-technical
responses were rated poorly in comparison to the other applicants. Also,
one panel member described complainant as seeming hostile or impolite.
Although complainant contends that he was more qualified than the
selectees, the record does not indicate that his qualifications rise to
the level of being plainly superior to those of the selectees.
In addition, complainant failed to show that the Dispatch Supervisor
solicited negative information about him in order to deny him the position
because of his age and prior EEO complaint. The evidence suggests that
the Dispatch Supervisor did not wish to select complainant because he
questioned complainant's work performance and knew that some Dispatchers
did not speak favorably of complainant. In addition, complainant
failed to show that his nonselection under the Voluntary Reassignment
Opportunity notice was as a result of any discriminatory action on the
part of the Dispatch Supervisor. The Dispatch Supervisor did not serve
on the interview panel and the panel members also indicated that they
were not coerced or influenced by the Dispatch Supervisor regarding the
ranking of the applicants. To the contrary, the panel members stated that
complainant's responses to the non-technical questions were not as good
as those given by other applicants. Lastly, complainant contends that
he was required to interview for the Power System Dispatcher position
although the agency routinely transferred other current employees who
applied for similar dispatch positions without an interview. The evidence
and testimony in the record shows that the agency implemented a policy
that requires all applicants, including those applying under a Voluntary
Reassignment notice, to be interviewed prior to agency officials learning
of complainant's decision to apply for the position. The Operations
Manager also testified that the agency required all applicants to
interview in order to ensure that the best applicants were selected for
the position.
Thus, we conclude that the AJ's decision finding no discrimination is
supported by substantial evidence of the record.
Accordingly, the agency's final 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
April 20, 2005
__________________
Date
1The AJ chose to phrase the issue as a broad claim of nonselection.
Complainant also alleged that the Dispatch Supervisor solicited negative
information about him as pretext to deny him the position, and that
complainant was required to interview for the position although the
agency routinely transferred other applicants into similar positions
without requiring an interview.