0120064685
05-23-2008
Richard N. Schowengerdt, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Contract Management Agency), Agency.
Richard N. Schowengerdt,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Contract Management Agency),
Agency.
Appeal No. 01200646851
Hearing No. 340-2005-00094X
Agency No. YT-03-0958
DECISION
Complainant filed an appeal from the agency's July 14, 2006 final order
concerning his equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of 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.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a GS-0855-12 Electronics Engineer at the agency's facility in Palmdale,
California. On December 18, 2003, complainant filed an EEO complaint
alleging that he was discriminated against on the basis of age (73)
when:
1. Complainant was not selected for the Contract Team Supervisor
position;
2. Complainant was not selected for the Technical Assessment
Supervisor position; and
3. Complainant was not selected for the GS-13 position of Electronic
Engineer Supervisor in November 2003.
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 requested
a hearing. On June 17, 2005, the agency requested that the AJ enter
a decision by summary judgment. By orders dated December 29, 2005,
and February 24, 2006, the AJ granted the agency's motion, in part,
with respect to claims (1) and (2). The AJ found no material disputes
regarding the first two selection decisions and that drawing every
inference in complainant's favor, that complainant did not show that
he had the specialized experience, skills, or the level of experience
required or desired for the positions when compared to the selectees.2
The AJ held a hearing on January 11, 2006 for the purpose of taking
testimony regarding claim (3).3 Thereafter, the AJ issued a decision
on May 25, 2006.
In his decision, the AJ found that complainant did not show that
his education, skills, and experience were observably superior to
those possessed by the selectee. On the contrary, the AJ found that
the panel members unanimously identified the selectee (S1) as the
best candidate for the position and that each panel member found S1's
qualifications in specific areas well suited to the position for which he
was selected including his degree in mechanical engineering, supervisory
and management experience, knowledge of earned value management systems,
and low observable technology. The AJ found that complainant's interview
with the panel members indicated that complainant's communications
and understanding of the earned value management systems were average
at best. Accordingly, the AJ found that complainant had not shown that
his age played any role in the selection process and that the agency's
reasons for selecting S1 were not shown by complainant to be pretextual.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that he was subjected to discrimination
as alleged.
On appeal complainant states that a closer examination of his credentials
compared to those of S1 would show that his experience was superior and
that he should have been selected.
ANALYSIS AND FINDINGS
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).
In the instant case, we find that substantial evidence supports the
AJ's finding that age discrimination did not motivate the agency's
selection decision in claim (3). Specifically, we note that evidence of
complainant's knowledge, skills and experience appears in the record, as
does that of S1 and that complainant did not show that the panel members
were either unaware of complainant's qualifications or did not consider
his qualifications during the selection process. On the contrary, we
concur with the AJ's finding that complainant lacked good communication
skills and did not perform during the interview as well as the selectee
performed. We find that complainant did not show that the agency's
reasons for selecting S1 were false or a pretext to mask discrimination.
Rather, the evidence showed that S1 possessed greater knowledge of the
earned value management system and that he answered the panel's questions
in this area and other substantive areas, better than did complainant.
We therefore AFFIRM the agency's final decision finding no
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 23, 2008
__________________
Date
1 Due to a new data system, the Commission has redesignated the instant
case with the above- referenced appeal number.
2 Neither party appeals the AJ's summary judgment decision regarding
claims (1) and (2). We therefore confine our decision to consideration
of complainant's appeal regarding the third non-selection, claim (3).
3 The AJ considered that the agency did not produce the notes from the
interview process for the selection described in claim (3). However,
the AJ found the testimony of the panel members to be credible and
that an adverse inference would not have altered the finding that no
discrimination occurred. The AJ ultimately did not draw an adverse
inference regarding the agency's production failure and we concur with
the AJ's decision.
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0120064685
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064685