01A11691
07-29-2002
Sammie McNeal, Jr., Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Sammie McNeal, Jr. v. Department of Veterans Affairs
01A11691
July 29, 2002
.
Sammie McNeal, Jr.,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A11691
Agency No. 200K-0578-99-1215
Hearing No. 210-AO-6234X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that he was discriminated against on the bases of
his race (Indian African American), color (Black/Brown), sex (male),
national origin (Black American Indian), age (D.O.B.: January 19, 1952),
disability (spine, back, both legs), and/or reprisal for prior EEO
activity protected by unspecified statute in violation of Title VII of
the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et
seq. when on February 18, 1999, the agency did not reinstate him to a
WG-3566-1/2 Housekeeping Aid position at the agency's Veterans Affairs
Medical Center in Hines, Illinois.<1>
For the purposes of the following analysis, we will assume, without
finding, that complainant is an individual with a disability within the
meaning of the Rehabilitation Act. Regarding complainant's contention
that he was discriminated against on the bases of his race, color, sex,
national origin, and retaliation, inasmuch as the application material
complainant submitted did not disclose his membership in these protected
groups, we affirm the Administrative Judge's finding of no discrimination
because the selecting officials were unaware of complainant's race,
color, sex, national origin, or prior EEO activity at the time of the
selection. The selecting officials were aware of complainant's age and
disabilities at the time of the selection. The selecting officials assert
a legitimate nondiscriminatory reason for non-selecting complainant;
namely, complainant did not have experience working in specialized
intensive care wards. The agency further maintains that the selectees
were better qualified based on their experience working in intensive
care wards where they used special cleaning techniques and worked with
germicidal substances. The complainant failed to rebut the agency's
nondiscriminatory reason for the selections it made. Based upon
our review of the record in its entirety, including consideration of
all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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
July 29, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.