01995340
04-10-2002
Thomas P. Bezelik, Complainant, v. LT. Gen. Michael V. Hayden, Director, National Security Agency, Agency.
Thomas P. Bezelik v. National Security Agency
01995340
04-10-02
.
Thomas P. Bezelik,
Complainant,
v.
LT. Gen. Michael V. Hayden,
Director,
National Security Agency,
Agency.
Appeal No. 01995340
Agency No. 98-028
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant filed a complaint in which he claimed that the agency
discriminated against him in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. � 2000e, et seq., the Age
Discrimination in Employment Act (ADEA) of 1967, as amended, 29 U.S.C. �
633a, and Section 501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. � 791. He claimed that the agency discriminated against him on
the bases of race (white), sex, disability (arthritis, back problems),
and reprisal by not promoting him to grade 14 in June 1998. The agency
investigated the complaint and notified complainant of his right to
request a hearing or to receive a final decision without a hearing.
Complainant opted for the latter, and accordingly, the agency issued
its final decision, in which it found no discrimination. This appeal
followed.
The agency employed complainant as a grade-13 senior engineering
specialist and acquisition program manager at its headquarters.
He was employed within the Specialized Projects Branch (Branch),
Information Security Acquisition Division (Division), Technical Services
Office (Office) Information Systems Security Operations Directorate
(Directorate). On March 28, 1998, he learned that the management of the
division, the office, and the directorate would neither recommend nor
support him for promotion to GG-14. According to the division chief,
two individuals from the division were promoted to GG-14 in June 1998.
The division chief stated that complainant was not promoted because
his qualifications for promotion were not competitive with those of
the selectees. Investigative Report, Exhibit (IRE) 7.
To prevail in a disparate treatment claim such as this, complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He
must generally establish a prima facie case by demonstrating that
he was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be
dispensed with in this case, however, since the agency has articulated
legitimate and nondiscriminatory reasons for its conduct.<1> See United
States Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-17 (1983). To ultimately prevail, complainant must prove, by a
preponderance of the evidence, that the agency's explanation is a pretext
for discrimination. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519
(1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248,
256 (1981). Since the matter at issue involved a promotion, complainant
may be able to demonstrate pretext with a showing that his qualifications
for promotion to grade 14 were plainly superior to those of the two
selectees. Wasser v. Department of Labor, EEOC Request No. 05940058
(November 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
The record supports the division chief's statement. One of the selectees
possessed a bachelor's degree in electrical engineering and a masters
degree in technical management. IRE 29. The other selectee had two
bachelors degrees - one in electrical engineering, and the other in
applied math and physics. IRE 34. By his own admission, complainant
did not have a bachelors degree. IRE 1. The division chief stated that
whether or not one had attained a degree was one factor taken into
consideration by promotion review boards. The division chief noted
that the selectees had been taking courses to keep up with developments
in their fields. In addition, the selectees had more awards than
complainant, both in number and in size. IRE 7. The division chief's
assessment of the qualifications of the selectees and of complainant had
been corroborated by the deputy division chief, the deputy office chief,
and the executive manager of the office. IRE 8, 9, 10.
In support of his appeal, complainant has submitted an extensive brief
and numerous documents. Among the arguments he raised on appeal is that
the agency misapplied its affirmative action plan and consequently, that
complainant's non-promotion resulted from reverse discrimination. However,
complainant has failed to establish the relevance of the agency's
affirmative action to the promotion action at issue � the selectees,
like complainant, were both white males. Complainant also appears to be
arguing that there was direct evidence of discrimination in this case.
In making this argument, however, complainant seriously misconstrues
the definition of direct evidence. Direct evidence of discrimination is
any statement made by an agency official that on its face demonstrates
a discriminatory or retaliatory motive and is linked to the complained
of adverse action. EEOC Policy Guidance on Recent Developments in
Disparate Treatment Theory, EEOC Notice No. 915.002 at 16 (July 7, 1992).
Complainant has not identified any such statement by any official named
in his complaint. The reference to the need for �fresh talent,� in the
work force transition document to which complainant refers on page 33
of his brief does not meet that definition.
We have considered complainant's remaining arguments on appeal.
Even if complainant established a prima facie case of discrimination
on all bases alleged, he has not shown that his qualifications were so
plainly superior to those of the selectees as to compel a finding of
discriminatory or retaliatory motivation on the part of those managers
who did not support his bid for promotion. Likewise, has not provided
any other evidence of pretext other than his own statements. Moreover,
he has not presented any documents or statements which contradicts the
statements given by the division chief and the other management officials,
or which undermines their credibility as witnesses.
After a 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 decision
because the preponderance of the evidence of record 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
____04-10-02______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1For purposes of analysis, we will assume, arguendo, that complainant
was a qualified individual with a disability.