Robert L. Williams, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionOct 20, 2003
01A23879 (E.E.O.C. Oct. 20, 2003)

01A23879

10-20-2003

Robert L. Williams, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense (Defense Logistics Agency), Agency.


Robert L. Williams v. Defense Logistics Agency (DLA)

01A23879

October 20, 2003

.

Robert L. Williams,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense

(Defense Logistics Agency),

Agency.

Appeal No. 01A23879

Agency No. JH-01-004

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning his 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.

The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the

following reasons, the Commission AFFIRMS the agency's final decision.

The record reveals that during the relevant time, complainant was

employed as a Supervisory Property Disposal Specialist at the agency's

Fort Campbell, KY facility. Complainant sought EEO counseling and

subsequently filed a formal complaint on March 20, 2001, alleging

that he was discriminated against on the bases of sex (male), and age

(D.O.B. April 12, 1946) when he was not given an accretion of duty

promotion and a female employee at another facility was given an accretion

of duty promotion.<1>

At the conclusion of the investigation, complainant was informed of

his right to request a hearing before an EEOC Administrative Judge or

alternatively, to receive a final decision by the agency. Complainant

requested that the agency issue a final decision.

In its FAD, the agency concluded that complainant failed to show

pretext. On appeal, complainant contends that he was treated differently

from other employees. The agency requests that we affirm its FAD.

Although the Commission finds that complainant properly established a

prima facie case of age discrimination, we also find that complainant

failed to present evidence that more likely than not, the agency's

articulated reasons for its actions were a pretext for discrimination.

In reaching this conclusion, we note that the record shows that the

complainant was not accorded the accretion of duty promotion given

to a female employee, the decision maker was not the same and she was

assigned to a different facility. In addition, the record shows that,

at the time the decisions were made with regard to the complainant, the

agency was operating under a different recruitment policy. The record

is insufficient to prove discrimination on the basis of sex or age.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we affirm the FAD.

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

October 20, 2003

__________________

Date

1 The record shows that the complainant also raised the issue of

retaliation, but did not pursue the claim on appeal.