0120064581
03-05-2008
Paul Zuffante, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Paul Zuffante,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01200645811
Hearing No. 210-2005-00048X
Agency No. 200K-0537-2004102
DECISION
On August 2, 2006, complainant filed an appeal from the agency's June
29, 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., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission AFFIRMS the agency's final order.
At the time of events giving rise to this complaint, complainant worked
as a Housekeeping Aide at the agency's Environmental Management Services
facility in Chicago, Illinois. On March 4, 2004, the agency posted a
vacancy announcement for the position of Dental Laboratory Technician.
Complainant was one of four candidates who applied, was found qualified,
and interviewed by a four-member panel. Complainant was not selected
for the position. Two weeks later, an additional staffing request was
approved and the announcement was re-issued. The interview panel was not
re-convened and complainant was again not selected. On June 9, 2004,
complainant filed an EEO complaint alleging that he was discriminated
against on the bases of race (Caucasian) and age (D.O.B. 10/02/46) when,
on April 13, 2004, he learned he had not been selected for the position
of Dental Laboratory Technician.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing and the AJ held a hearing on October 5, 2005 and
issued a decision on June 6, 2006.
Initially, the AJ found that complainant had established a prima facie
case of discrimination on the alleged bases. The AJ then found that
the agency had articulated legitimate, nondiscriminatory reasons for
its actions. The AJ found that the panel members considered all four
candidates similarly qualified; however, the two selectees were given good
recommendations by former co-workers and supervisors while complainant's
former supervisor stated that he was a "good worker," but never "went
that extra mile." Further, complainant's former supervisor claimed that
at one point complainant began showing up to work late and leaving early,
and even resigned when his supervisor informed him that his behavior was
unacceptable. Finally, the AJ found that complainant failed to present
any evidence that the agency's reasons were pretextual. As such, the AJ
found that complainant had failed to prove that he had been discriminated
against on the alleged bases. The agency subsequently issued a final
order adopting the AJ's conclusion. On appeal, complainant argues that
the record reflects direct evidence of age and race discrimination.
The agency asks that we affirm the final order.
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. An AJ's
credibility determination based on the demeanor of a witness or on the
tone of voice of a witness will be accepted unless documents or other
objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
Initially, we note that that contrary to what complainant claims,
we do not discern any direct evidence of discrimination in this case.
Direct evidence is an action or statement of an employer which reflects
a discriminatory or retaliatory attitude, and which correlates to the
challenged act. See Caban-Wheeler v. Elsea, 904 F.2d 1549, 1555 (11th
Cir. 1990). Once the trier of fact has accepted the direct evidence,
liability is established. EEOC Policy Guidance on Recent Developments
in Disparate Treatment Theory, No. 915.002, July 14, 1992, Section III.
Accordingly, we proceed with our analysis of the circumstantial evidence
in this case.
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
We will assume, arguendo, that complainant has established a prima
facie case of discrimination on the alleged bases. The agency has
articulated legitimate, nondiscriminatory reasons for its actions.
The Selecting Official (SO) claims that the selectees have more training
and experience in the areas that the agency required now and in the
future, while complainant was inexperienced in those areas. Further,
SO claims that there was some concern about complainant's ability to get
along with co-workers. Additionally, complainant's former supervisor
recommended one of the selectees over complainant. Finally, as noted
by the AJ, SO was aware that the selectees had good reputations while
complainant's former supervisor stated that complainant "did good work,"
but never "went that extra mile."
In attempting to establish pretext, complainant claims that another more
qualified candidate was not selected because of his age. Complainant
makes note of SO's testimony that this other candidate was retired at the
time and that SO had concerns about how long the individual would stay in
the position if hired. We find that such reference to another candidate's
"retirement" is inadequate, by itself, to prove that discriminatory
animus factored into the decision not to select complainant. As to
race, complainant claims that out of all the candidates, he had the most
recent dental technician experience while the selectees had not worked
in a dental lab in six years. Complainant also claims that SO mentioned
during complainant's interview that the agency was looking for someone
who could "fit into the laboratory." Complainant interprets this as
meaning a Caucasian dental technician would not fit in.
Members of the interviewing panel stated that they did not attach
significant weight to recent experience as there has not been much change
in the required dental technician skills over the past six years and
the skills acquired as a dental technician are usually not easily lost.
Further, as noted above, the selectees had reputations as good workers
who got along with co-workers while complainant was not given a positive
recommendation by his former supervisor. The Commission finds that
substantial evidence supports the AJ's conclusion that complainant failed
to rebut the agency's explanations as pretext for unlawful discrimination.
Therefore, we find that the AJ properly found no discrimination.
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
final order.
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
March 5, 2008
__________________
Date
1 Due to a new data system, this case has been re-designated with the
above referenced appeal number.
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0120064581
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036