0120072862
09-26-2007
Sampath S. Krishnan, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.
Sampath S. Krishnan,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120072862
Agency No. 200518296FAA02
Hearing No. 100200600028X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's May 1, 2007, 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.
On December 16, 2004, complainant filed a complaint claiming
discrimination based on race (Asian), national origin (Indian), sex
(male), religion (Hindu), color (Brown), age (D.O.B. 07/06/43), and
reprisal for prior protected EEO activity when (a) he was not selected
for one of six positions as Program Manager in September 2004; and (b)
he was harassed and subjected to a hostile work environment in reprisal
for filing the instant complaint. Following an investigation, complainant
requested a hearing before an EEOC Administrative Judge (AJ). The agency
filed a Motion for a summary judgment, which complainant opposed; on
April 11, 2007, the AJ issued a decision granting the agency's motion.
The agency adopted the AJ's decision that it did not discriminate against
complainant.
At the time of the events herein, complainant was a Communications
Management Specialist. He contended that, as to (a), that the agency
favored employees of other races, that his work was menial, and that he
was more qualified and experienced than the six selectees. To support his
claim of hostile work environment, he averred that the selecting office,
his second-line supervisor (S2), made a remark that "this is not a place
of cow chasing." The agency stated that complainant's application package
was properly evaluated and was among nine employees interviewed by the
selection panel, consisting of three managers from different parts of
the agency. The names and scores were forwarded to S2, who picked the
first six highest-scoring candidates; complainant ranked seventh and was
not selected. As to the remark described by complainant, S2 contended
that he had no recollection of making such a statement, nor did any
other employees. The AJ held that the agency articulated legitimate,
nondiscriminatory reasons for its selection decisions, i.e., it selected
the six candidates deemed best qualified and that S2's remark, if made,
was not sufficiently severe or pervasive to rise to the level of illegal
harassment.1
On appeal, complainant repeated arguments properly made before the AJ
and did not present probative evidence in support of his claims for
which he had the ultimate burden of proof to demonstrate pretext by
preponderant evidence. After a review of the record in its entirety
and consideration of all statements submitted on appeal, including those
not specifically addressed, 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,2 and a preponderance of the record evidence does not
establish that discrimination occurred.3
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
___9/26/07_______________
Date
1 The AJ also found that complainant did not show previous EEO activity,
in that, complainant's application was not EEO activity.
2 In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without a hearing only upon a determination
that the record has been adequately developed for summary disposition.
See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,
2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,
2003). After a careful review of the record, the Commission finds that
the AJ appropriately issued a decision without a hearing, as complainant
failed to proffer sufficient evidence to establish that a genuine issue
of material fact exists such that a hearing on the merits is warranted.
3 The Supreme Court has held that, in the absence of evidence of a
discriminatory motivation, an employer generally "has discretion to choose
among equally qualified candidates...." Texas Department of Community
Affairs v. Burdine, , 450 U.S. 248, 259 (1981). Also, the Court recently
addressed the question of comparative qualifications as evidence of
pretext and held that, to demonstrate pretext, the complainant must show
that her/his qualifications were significantly more superior than those
of the selectee. See Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006).
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0120072862
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072862