01990419
08-06-1999
_____________, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
_____________, )
Appellant, )
) Appeal No. 01990419
v. ) Agency No. XI-96-002
) Hearing No. 100-96-7593X
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision
(FAD) concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the bases of religion (Jewish),
sex (male), reprisal (prior EEO activity and opposition to alleged
discrimination against another employee), and age (DOB: ________),<1>
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. � 621 et seq. Appellant alleges
he was discriminated against when on or around August 13, 1995, he was
not selected for promotion to one of three GS-1910-12 Quality Assurance
Specialist (QA), one General QA and two Software QA, positions pursuant
to Job Opportunity Announcement Number 95-45. 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, a GS-1910-11 Quality Assurance
Specialist at the agency's Defense Contract Management Office in
Israel at the relevant time, filed a formal EEO complaint alleging
that the agency discriminated against him as referenced above. At the
conclusion of the investigation, appellant requested a hearing before
an Equal Employment Opportunity Commission (EEOC) Administrative Judge
(AJ). Pursuant to 29 C.F.R. � 1614.109(e), the AJ notified the parties
of her intent to issue a Recommended Decision (RD) without a hearing.
The agency submitted a detailed Motion for Summary Judgment, setting forth
the relevant facts and applicable legal analysis. Appellant submitted a
motion in opposition to Summary Judgment. After reviewing both motions
and the investigative file, the AJ determined that there were no genuine
issues of material fact, and issued an RD finding no discrimination.
The AJ concluded that appellant presented insufficient evidence to
establish that he was discriminated against by the agency under any of
his alleged bases. In reaching this conclusion, the AJ stated that the
agency's motion for summary judgment (MOTION) correctly set forth the
material facts and applied the relevant legal standards.
Specifically, in its MOTION which the AJ incorporated in her RD by
reference, the agency noted that the agency articulated a legitimate,
nondiscriminatory reason for its selections. The agency specifically
noted that it established a rating panel consistent with agency policy,
which ranked applications submitted by sixteen applicants, including
appellant. The PANEL then forwarded every application to the three
selecting officials (SOs) and recommended six candidates for the software
QA and six candidates for the general QA positions. After an independent
review of all the application packages, including appellant's, the SOs
discussed, and came to an agreement on, the top choices for each of the
three QA positions. All of the SOs stated consistently that appellant
had less overall experience in QA than each of the selectees, that he had
not worked in QA since 1986, that he was not certified in QA software,
and that he did not have Defense Acquisition Workforce Improvement Act
(DAWIA) certification, which incumbents in the position had to have,
or obtain if selected in order to encumber a QA position. The MOTION
concluded that appellant presented no evidence which raised a material
issue of fact sufficient to dispute the agency's articulated reasons.
In reaching this conclusion, the agency noted that although it could not
produce his application, it produced another application he completed
around the same time. Moreover, the MOTION contained two additional
applications completed by appellant, and noted that these applications
presented an accurate picture of his background and experience.
The agency's FAD adopted the AJ's RD without setting forth any additional
factual or legal analysis. On appeal, appellant restates arguments
previously made in his motion opposing summary judgment, and argues that
neither the AJ's RD or the agency's FAD set forth any legal analysis or
addressed the relevant facts and issues. Appellant also argued that
the agency's failure to produce his application, among other things,
created a genuine issue of material fact. The agency argued that
the AJ reviewed the entire record, and by incorporating its motion
into the RD, the AJ's RD adequately set forth the relevant facts and
legal analysis. The agency also stated that it asked appellant for a
copy of his application, and appellant was unable to locate his copy.
The agency noted that even though the application was missing, each of
the panelists reviewed appellant's application, and appellant presented no
evidence that the application he submitted for the positions in question
differed significantly from any of his other applications which the
agency had included with its MOTION.
After a careful review of the record, the Commission concludes that
the agency's MOTION, as incorporated by the AJ in her RD, adequately
sets forth the applicable facts and articulates the appropriate legal
analysis and conclusions. While appellant contends that the AJ's RD did
not set forth appropriate factual and legal analysis, the Commission
finds that the AJ specifically stated in her RD that she reviewed
the agency's MOTION to ensure that the facts accurately reflect the
record, that the cited law was consistent with applicable Commission
precedent, and that the conclusions drawn from the facts and applied to
the law were consistent with the facts, legal standards, and applicable
burdens of proof.<2> We further find that while the agency could not
produce appellant's application, the record clearly establishes that the
reviewing and selecting officials had his application, and appellant
does not allege any additional information existed in his application
which would create a genuine issue of material fact. We do, however,
remind the agency of its obligation to produce relevant and material
information to an EEO investigator.
Accordingly, we 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, including appellant's
contentions on appeal, the agency's response, 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:
August 6, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 The Commission
notes that the Administrative Judge's Recommended
Decision inadvertently stated appellant's birth
date as 2/17/95.
2 The Commission reiterates that in granting summary judgment and
incorporating the motion of a party in lieu of restating applicable
facts or law in the body of the RD, Administrative Judge's should review
such motions carefully to ensure that not only the findings of fact
are consistent with the record, but that the conclusions of law are
consistent with applicable Commission precedent, and that no genuine
issue of a material fact remains. See 29 C.F.R. � 1614.109(g).