01971603
03-03-1999
William V. Neria, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
William V. Neria, )
Appellant, )
) Appeal No. 01971603
v. ) Agency No. 93-1876
) Hearing No. 340-95-3316X
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision
(FAD) concerning her equal employment opportunity (EEO) complaint
of unlawful employment discrimination on the bases of race (Mexican
and Native American), reprisal (prior EEO activity), and physical
disability (lupus, psoriasis, arthritis, heart disease and kidney
failure), in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.; and the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791, et seq. Appellant alleges he was
discriminated against when: (1) on or about April 24, 1992, he was not
selected for the position of Diagnostic Radiology Technologist (DRT) in
the special procedures section of Radiology as a Computer Tomographer
(CT); and (2) on or about August 19, 1992, he was not selected for
the position of DRT in the special procedures section of Radiology as
a CT/Magnetic Resonance Imaging (CT/MRI). The appeal is accepted in
accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is AFFIRMED.
The record reveals that appellant was employed as a GS-7 DRT at the
agency's Medical Center at Loma Linda, California, before being approved
for disability retirement in 1988. In April 1992, appellant became aware
of and applied for a GS-7 DRT position in the special procedures section
of Radiology as a CT under Announcement #92-33, he was classified as being
�qualified� and �reinstatement eligible,� and his name was referred to the
Chief of Radiology Service (CRS) with other applicants. The CRS forwarded
these applications to the Supervisor Diagnostic Radiologic Technologist
(SDRT), but no selection was made and the position was reannounced
under Announcement #92-63 seeking a combined MRI/CT DRT at the GS-8
level to provide more flexibility and a greater pool of candidates.
Appellant applied for the MRI/CT position and was presented as being
�reinstatement eligible� and �qualified�, but the SDRT recommended the
selection of another candidate due to her experience and ability with CT.
Believing he was a victim of discrimination, appellant sought EEO
counseling and, subsequently, filed a formal EEO complaint with the
agency on November 11, 1992, alleging that the agency had discriminated
against him as referenced above. At the conclusion of the investigation,
appellant received a copy of the investigative report and requested
a hearing before an Equal Employment Opportunity Commission (EEOC)
Administrative Judge (AJ). Following a hearing, the AJ issued a
Recommended Decision (RD) finding no discrimination.
The AJ concluded that appellant failed to establish a prima facie case
of race discrimination because although he is a member of protected
classes, was found qualified for the CT position and was not selected,
the agency did not seek or select another person for the position not
in appellant's protected class. The AJ further found that appellant
failed to establish a prima facie case of disability discrimination,
as although he has several permanent disabilities, was deemed qualified
for the CT position and was not selected, appellant failed to prove
that the agency hired another applicant for the position. Finally, the
AJ concluded that appellant failed to establish a prima facie case of
reprisal discrimination, as appellant engaged in protected EEO activities
many years prior to his nonselection such that any causal connection
could not be demonstrated.
The AJ further found that appellant failed to establish prima facie
cases of discrimination on the bases of race, disability or reprisal
regarding his nonselection for the MRI/CT position, as appellant was not
similarly qualified to the selectee<1>, and as the prior EEO activity
was so far in the past that there could not be a causal connection to
the nonselection. The AJ further found that assuming, arguendo, that
appellant had established a prima facie case on any of the above-stated
bases, the agency articulated a legitimate, nondiscriminatory reason for
its actions, specifically that the selectee had superior qualifications
and experience as a CT. The AJ further found that appellant did not
establish that more likely than not, the agency's articulated reasons were
a pretext to mask unlawful discrimination or retaliation. The agency's
FAD adopted the AJ's RD. Appellant makes no new contentions on appeal,
and the agency requests that we affirm the FAD.
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We agree with the AJ's finding that as
the announcement for the CT position was withdrawn and the position was
reannounced after combining the CT and MRI functions, no other applicant
was chosen and thus appellant failed to demonstrate a prima facie case
of race or disability discrimination. See Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). We agree with the AJ's finding that appellant failed
to establish a prima facie case of reprisal discrimination regarding
the CT position, as he failed to demonstrate a causal connection between
his EEO activity and his nonselection. We further agree with the AJ's
finding that appellant failed to establish a prima facie case of race,
disability or retaliation discrimination regarding the MRI/CT position,
as the selectee possessed superior qualifications. We further agree with
the AJ's finding that appellant failed to present evidence that any of the
agency's actions were in retaliation for appellant's prior EEO activity
or were motivated by discriminatory animus toward appellant's race or
disability. We thus discern no basis to disturb the AJ's findings of no
discrimination which were based on a detailed assessment of the record.
Therefore, after a careful review of the record and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
March 3, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The AJ noted that appellant conceded that the selectee possessed
superior qualifications in CT, and that appellant did not have the
five years of specialized experience in CT and/or MRI required for the
MRI/CT position.