0120100136
08-12-2011
Sam Chapman, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Sam Chapman,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120100136
Hearing No. 430-2008-00072X
Agency No. ARBRAGG07MAR00642
DECISION
Complainant filed an appeal from the Agency’s final order dated
September 10, 2009, finding no discrimination with regard to his
complaint. 29 C.F.R. § 1614.405(a). For the following reasons, we
AFFIRM the Agency’s final order.
BACKGROUND
In his complaint, dated April 25, 2007, Complainant, a Physical Security
Specialist, GS-0080-11, at the Agency’s Security Intel Division at
Fort Bragg, North Carolina, alleged discrimination based on race (Black)
and age (over 40) when on February 23, 2007, he was not selected for the
position of Supervisory Police Officer, GS-0083-12.1 The record indicates
that at the conclusion of the investigation, Complainant requested a
hearing before an EEOC Administrative Judge (AJ). On August 8, 2005,
the AJ, after a hearing, issued a decision finding no discrimination,
which was implemented by the Agency in its final order.
ANALYSIS AND FINDINGS
In this case, the AJ determined that, assuming arguendo that Complainant
had established a prima facie case of discrimination, the Agency
articulated legitimate, nondiscriminatory reasons for the alleged
nonselection. The Agency stated that a three-member panel reviewed
qualified candidates’ resumes and rated according to a rating matrix,
and the matrix was forwarded to the selecting official. The selecting
official selected a selectee for the Supervisory Police Officer, GS-12,
position at issue because Complainant was ranked fifth of nine candidates
with a score of 18 points and the selectee was ranked first place with
a score of 22 points. Complaint File (COM) at 211. The record also
indicates that the selectee worked as a Supervisory Police Officer,
for past several years whereas Complainant worked as a Physical Security
Specialist, i.e., a non-supervisory position. COM at 202, 206.
The AJ stated that Complainant failed to show by a preponderance of
the evidence that the Agency’s proffered reasons were pretextual.
Upon review, we find that the AJ’s factual findings of no discriminatory
intent are supported by substantial evidence in the record. Furthermore,
Complainant failed to show that his qualifications for the position were
plainly superior to the selectee’s qualifications or that the Agency’s
action was motivated by discrimination. See Wasser v. Department of
Labor, EEOC Request No. 05940058 (November 2, 1995).
CONCLUSION
Accordingly, the Agency’s final order is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
8/12/11
__________________
Date
1 The record indicates that although Complainant also alleged
discrimination based on disability, he withdrew that basis during the
investigation of his complaint. Report of Investigation at 1.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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