0120060985
03-26-2008
Sidney R. Odell, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Sidney R. Odell,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 01200609851
Agency Nos. ARCEM03MAR0056 & ARCEM03JUN0070
Hearing No. 250-2004-00222X
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. Complainant alleges discrimination
on the basis of reprisal for prior protected EEO activity when:
1. On January 15, 2003, complainant was not selected for the position
of Realty Specialist, GS-1170-11, for Job Announcement 2GL0106612.
2. On January 15, 2003, complainant was not selected for the position
of Lead Realty Specialist, GS-1170-12, for Job Announcement SWGL0313064.
3. On March 12, 2003, complainant was not selected for the position of
Cartographic Technician, GS-1371-12, for Job Announcement SWGL03159077.
4. On an unspecified date, complainant was denied the same training
opportunities that were given to an employee in the Geospatial Branch.
5. On an unspecified date, the agency created a Realty Specialist position
and complainant was not selected for the Realty Specialist position for
Job Announcement SWGL03160513 on April 28, 2003.
After holding a hearing on the matter, an EEOC Administrative Judge (AJ)
issued a decision on September 27, 2005, finding no discrimination.
Specifically, the AJ found the agency presented legitimate,
nondiscriminatory reasons for its actions, which complainant failed
to rebut. On October 13, 2005, the agency issued a decision finding
no discrimination. The agency fully implemented the AJ's decision.
Complainant now appeals from that decision.
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.
We find that the agency articulated legitimate, nondiscriminatory
reasons for its actions. Regarding claim 1, Recommending Official
A stated that she scored the selectee higher because the selectee
had recent experience acquiring tracts of real estate in Chicago.
Recommending Official A asserted that complainant lacked experience
in real estate. On Knowledge, Skills and Abilities (KSA) number
five, dealing with a general understanding of appraisal terminology,
Recommending Official A gave the selectee a higher score because
she exhibited a clear understanding of the appraisal process in the
Chicago acquisitions. Recommending Official A said that complainant's
application showed no knowledge of the appraisal process. Recommending
Official B scored the selectee higher because of her work in Pittsburgh
in acquisition and negotiations and in Chicago permits and leases.
Recommending Official B claimed that complainant demonstrated no in-depth
knowledge of acquisitions. Recommending Official C scored the selectee
higher because she had a long history as a real estate specialist;
whereas complainant had considerably less experience and did not have
experience at the level of work required by the position.
As to claim 2, Recommending Official A scored the selectee higher because
the selectee had title experience, but Recommending Official A found that
complainant's application gave no indication of title or acquisitions
experience. On KSA number four, dealing with ability to lead, train,
and coach team members, Recommending Official A gave the selectee a
score of seven and complainant a score of four. Recommending Official A
scored the selectee higher because he had experience dealing with teams;
whereas, complainant provided no indication of experience as a team leader
or supervisor. Recommending Official B argued that he believed that the
selectee exhibited a greater breadth and depth of real estate knowledge.
On KSA number three, dealing with the knowledge to acquire an interest
in land, Recommending Official B gave the selectee a score of nine and
complainant a score of four. Recommending Official B scored the selectee
higher because he had done related work in the Little Rock district and
had done right of way work for the Nevada Department of Transportation.
On KSA number four, Recommending Official B gave the selectee a score of
seven and complainant a score of three. Recommending Official B scored
the selectee higher because he presented himself as a leader; whereas,
complainant gave no indication that he had performed as a leader,
trained, or coached team members. Recommending Official C scored the
selectee higher because he had longer and a wider variety of experience
in real estate. Recommending Official C asserted that the selectee had
twelve years experience in real estate, while complainant had only four
years experience.
With respect to claim 3, the Chief of the Geospatial Branch (Chief) stated
that he selected the selectee based on the selectee's ability to perform
the position immediately without training. The Chief argued that the
selectee had twenty-eight years experience in cartography, was familiar
with the latest software and could perform the GS-12 duties immediately.
The Chief claimed that it would have taken approximately one year for
complainant to get up to speed on the software.
Regarding claim 4, the Chief stated that complainant never made a
request for training in the Geospatial Branch. Additionally, the agency
argued that complainant could not identify any other civil engineering
technician who was provided such training. Moreover, the agency argues
that complainant did not work in the real estate area, and that branch
gave priority to its own employees for specialized training. The
agency asserted that real estate, like other areas in the district,
has a limited budget and chooses to spend its money on the employees
over which it has control and who will benefit most from the training.
The agency stated that it did not detail or assign anyone to several
vacant positions because it had short term plans to fill the vacancies.
With respect to claim 5, Recommending Official A scored the selectee
higher because the selectee developed bid packages and dealt with right
of way records, legal descriptions, planning, mapping, appraisals,
and negotiations. Recommending Official A claimed that complainant
had only one year experience in real estate and did not have a broad
range of knowledge in acquisition. On KSA number four, functional
knowledge of the regulations and laws governing the acquisition of real
property, Recommending Official A gave the selectee a score of nine and
complainant a score of five. Recommending Official A scored the selectee
higher because she had direct experience in the acquisitions' area, but
complainant had no experience in acquisitions. Recommending Official
B gave the selectee a higher score because she exhibited wider and more
diverse experience in real estate matters. On KSA number two, dealing
with functional knowledge and/or the ability to master a functional
knowledge of a wide range of real estate laws, Recommending Official
B gave the selectee a score of eight and complainant a score of two.
Recommending Official B gave the selectee a higher score because she
had experience in leases, easements, permits, the leasing program and
tract and bid packages. Recommending Official B stated that complainant
only had administrative experience. On KSA number four, Recommending
Official B gave the selectee a score of nine and complainant a score
of one. Recommending Official scored the selectee higher on this
KSA because she had experience in negotiations, leases, licenses, and
permits, while complainant had no such experience. On KSA number five,
general understanding of appraisal terminology, Recommending Official
B gave the selectee a score of eight and complainant a score of two.
Recommending Official B gave the selectee a higher score because she had
conducted acquisitions that required appraisal review, while complainant
gave no indication that he knew anything of appraisal terminology.
Recommending Official C gave the selectee a higher score based upon
her greater experience in waste disposal, permits, and the real estate
management system.
The Commission finds that complainant failed to rebut the agency's
articulated legitimate, nondiscriminatory reasons its actions.
Furthermore, the Commission finds that complainant failed to show
that his qualifications for the positions were plainly superior to the
selectees' qualifications or that the agency's actions were motivated by
discrimination. Moreover, the Commission finds that complainant failed
to show, by a preponderance of the evidence, that he was discriminated
on the basis of reprisal. The AJ's finding of no discrimination is
supported by substantial evidence in the record.
The agency's decision finding no discrimination is AFFIRMED.
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
March 26, 2008
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120060985
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036