01a42773_r
07-14-2004
Theodore W. Makse, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Theodore W. Makse v. Department of Veterans Affairs
01A42773
July 14, 2004
.
Theodore W. Makse,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A42773
Agency No. 200J-0541-2003100899
DECISION
Complainant filed this appeal from the March 1, 2004 agency decision
finding no discrimination.
Complainant alleged that he was discriminated against on the bases of
disability (back) when on or around November 25, 2002: (1) complainant
was informed that he was not selected for the position of Maintenance
Operations General Foreman, MPA 02-117; and (2) complainant was informed
that he was not selected for the position of Utilities Systems Repairer
Operator Supervisor, MPA 03-018.
At the conclusion of the investigation, complainant was informed of
his right to request a hearing before an EEOC Administrative Judge but
complainant requested that the agency issue a decision.
In its decision, the agency concluded that complainant failed to establish
a prima facie case of disability discrimination. The agency further
concluded that even if complainant established a prima facie case,
complainant failed to show that the agency's reason for making the
selection was pretextual.
The record discloses that complainant injured his back while working as
a Utilities Systems Repairer Operator in 1981 when he fell off a ladder.
Complainant continued to work until 1984. He was determined to be totally
disabled by the Office of Workers' Compensation Programs (OWCP) in 1985.
In 1997, OWCP determined that complainant was able to work part-time
in a light duty position. By May 2003, complainant had been working a
20-hour workweek for six years as a Pharmacy Aid with the agency.
The record reveals further that complainant applied for the agency
positions of Maintenance and Operations General Foreman and Utilities
Systems Repairer Operator Supervisor. Complainant was deemed qualified
for both positions but he was not selected for either of the positions.
The record reveals that none of the candidates deemed qualified were
interviewed.
The record contains complainant's sworn statement, wherein he stated
that his application for the Foreman position indicated that he was a
disabled veteran. Complainant also stated that the fact that he did
not work for years would have the selecting official wonder about the
reason why complainant had not worked. While complainant also stated
that he did not know if he were more qualified than the selectee for
the Foreman position, and his resume did not reflect the dates of his
employment, it was clear that he had 36 years as a licensed engineer.
Regarding his nonselection for the Supervisor position, complainant stated
that when he applied for the Supervisor position, he made sure that the
agency knew that he had a disability by informing the agency that he
should be able to come back to the agency under rehabilitation rights.
Complainant stated that he had worked for the agency as a Utilities
Systems Repairer Operator; he used to work with the selectee and trained
him; he was more qualified than the selectee; he had acted in the position
as a supervisor in 1984; and the selectee had not supervised before.
The record contains the sworn statement of the Chief of Engineering
(COE) who was the selecting official for the position of Maintenance
Operations General Foreman, stating that the selectee was chosen for
his leadership skills. The COE stated that he knew the selectee when he
worked as an Electric Shop Supervisor and that the selectee had excellent
communications skills and was very technically competent. The COE stated
that the recent nature of a candidate's experience might be considered,
noting that engineering was a dynamic field with constant changes in
procedures and in codes which had to be met. The COE also stated that
he did not know complainant.
Regarding the selection for the position of Utilities Systems Repairer
Operator Supervisor, the COE stated in his sworn statement that he
forwarded the certificate of qualified applicants to the Facilities
Manager (FM) who was to supervise the selectee. The COE also stated
that he reviewed the file of the selectee and felt that the FM had done
a satisfactory job in making a recommendation. The COE stated that
the selectee had current experience because he was a boiler operator at
the time of the selection in the same plant where he was to supervise,
whereas complainant had a lapse in time with regard to his experience
in operating a plant.
In his sworn statement, the FM stated that the selectee had supervisory
skills. The FM also stated that he knew complainant and was aware that
he had a disability. The FM stated that he doubted that any physical
disability would have any bearing on filling the position since the
supervisory position consisted mostly of desk work. The FM stated that
the selection was made by the selectee of the other position for which
complainant applied and he (FM) reviewed the selection and concurred.
A claim of disparate treatment is examined under the three-part
analysis first enunciated in McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973). For a complainant to prevail, the complainant
must first establish a prima facie case of discrimination by presenting
facts that, if unexplained, reasonably give rise to an inference of
discrimination, i.e., that a prohibited consideration was a factor in
the adverse employment action. See McDonnell Douglas, 411 U.S. at 802;
Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden
then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. See Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact
finder by a preponderance of the evidence that the agency acted on the
basis of a prohibited reason. See St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis to the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the agency's
actions were motivated by discrimination. See United States Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990).
Assuming arguendo that complainant has established a prima facie case
of discrimination, the Commission finds that the agency articulated
legitimate, nondiscriminatory reasons for its actions. The Commission
further finds that complainant failed to present evidence that more
likely than not, the agency's articulated reasons for its actions were a
pretext for discrimination. The Commission notes that an employer has
the discretion to choose among equally qualified candidates provided
that the employment decision is not based upon unlawful criteria.
Moreover, it is not the function of the Commission to substitute its
judgment for that of the selecting official familiar with the needs of
the agency. Although the Commission notes that in nonselection cases,
pretext may be found where the complainant's qualifications are plainly
superior to the qualifications of the selectee, the Commission is not
persuaded that complainant's qualifications were so plainly superior
to the qualifications and experience of the persons selected so as to
warrant a finding of pretext. See Wasser v. Department of Labor, EEOC
Request No. 05940058 (November 2, 1995).
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
July 14, 2004
__________________
Date