01972244
02-23-1999
Timothy A. Woodington, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Timothy A. Woodington, ) Appeal No. 01972244
Appellant, ) Agency No. 95-00187-002
v. ) Hearing No. 120-96-5248X
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
DECISION
The Commission accepts appellant's timely appeal from a final agency
decision ("FAD") concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
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. Section 621 et seq.
See EEOC Order No. 960.001. In his complaint, appellant alleged that
he was discriminated against based on his sex and age (date of birth:
August 8, 1952) when he was not selected for either of two positions
as a Production Controller, GS-9/10 or GS-11.
At the time in question, appellant was employed as a Planner and
Estimator, WD-8. Appellant applied for the positions in question, but
was not included on the certificate of candidates eligible for selection
at the GS-11 level, inasmuch as agency personnel determined that he
lacked the prerequisite one year of experience at the GS-10 level.
Appellant argued that he should have been certified at the GS-11 level
because: he had acted as a Production Controller in lieu of a GS-11
incumbent; his WD-8 level converted to a GS-10 on the general schedule;
and he previously was rated qualified for two GS-11 engineering positions.
Appellant was included among the 20 candidates certified as eligible
for selection at the GS-10 level, but another candidate (female, date
of birth: June 19, 1947) was selected. No personal interviews were
conducted; rather, the selecting official assessed each candidate's
application against a matrix designed to judge four areas: statistical
reporting; real property program management; funds management;
and resources management. The selectee received the highest rating
(14 points) on the matrix; appellant received five points. Appellant
contended that he was more qualified than the selectee because she had no
experience in the construction trades. He also argued that the agency
had traditionally filled this position from the ranks of Planners and
Estimators and noted that he was the only candidate who possessed a
college degree, which he contended was not properly weighed during the
selection process.
After receiving notification of his nonselection, appellant timely sought
EEO counseling and filed his instant EEO complaint, which was accepted
and investigated by the agency. Appellant timely requested a hearing
before an EEOC Administrative Judge ("AJ"). Thereafter, the AJ issued a
recommended decision ("RD") without a hearing (see 29 C.F.R. �1614.109(e))
finding no discrimination.
With respect to the agency's failure to certify him at the GS-11 level,
the AJ found that appellant did not establish a prima facie case of sex
or age discrimination. The AJ noted that appellant failed to proffer
evidence in support of his contentions that he had in fact been previously
certified for a GS-11 position or that a WD-8 position converted to a
GS-10 on the general schedule. Assuming that appellant could establish
a prima facie case of sex or age discrimination, the AJ found that
appellant's arguments failed to raise an inference of a discriminatory
bias on the part of the personnel specialist who reviewed the applications
for certification. In addition, the AJ noted that the ultimate selectee
at the GS-11 level was a male who was older than appellant.
With respect to appellant's nonselection for a position at the GS-10
level, the AJ noted that the selectee was five years older than appellant
and, therefore, that appellant could not establish a prima facie case
of age discrimination. While appellant could establish a prima facie
case of sex discrimination, the AJ found that selectee's application
revealed significant and lengthy experience in the relevant areas,
and fully supported the agency affidavits proffered in support of the
agency's motion for issuance of an RD without a hearing. The AJ found
that appellant failed to offer evidence in support of his assertions
that construction experience should be highly valued, that his college
degree should have been given greater weight, or that the position
traditionally was part of the career path for Planners and Estimators.
Accordingly, the AJ found that appellant offered no evidence that the
agency's articulated legitimate nondiscriminatory reasons were a pretext
for discrimination based on sex.
The agency adopted the RD in its FAD. Appellant timely appeals,
and argues that he seeks the opportunity to present his (unspecified)
evidence during a hearing.<1>
After a thorough review of the record, the Commission finds that the
RD adequately set forth the relevant facts and analyzed the appropriate
regulations, policies and laws. The record establishes that appellant
did not comply with the AJ's order to state with specificity the facts
and legal arguments that would be advanced at hearing, and that as the
party opposing summary judgement, he needed to proffer evidence such as
affidavits, interrogatory answers or other documentation in support of
his assertions. The Commission is not persuaded that the AJ erred in
issuing the RD pursuant to the provisions of 29 C.F.R. �1614.109(e).
Therefore, it is the decision of the Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
February 23, 1999
________________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 Appellant's submission on appeal was addressed to the agency's EEO
Director, and the remainder of the letter discusses the classification
of his current position.