______________________________ Earl A. Aiello, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionJan 15, 1999
01971721 (E.E.O.C. Jan. 15, 1999)

01971721

01-15-1999

______________________________ Earl A. Aiello, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Earl A. Aiello v. Department of Defense

01971721

January 15, 1999

______________________________

Earl A. Aiello, )

Appellant, )

)

v. )

) Appeal No. 01971721

William S. Cohen, ) Agency No. DM-94-029

Secretary, ) Hearing No. 179-95-8479X

Department of Defense, )

(Defense Logistics Agency), )

Agency. )

______________________________)

DECISION

Appellant filed a timely appeal with this Commission on December 16, 1996,

from a final agency decision ("FAD") dated November 21, 1996, concerning

his complaint alleging 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, as amended,

29 U.S.C. �621 et seq. In his complaint, appellant alleged that he

was discriminated against on the bases of sex (male) and/or age (born

on 11/19/50) when two females "S1" and "S2" (both under the age of 40)

were selected over him for two GS-05 Production Controller positions.

This appeal is accepted in accordance with the provisions of EEOC

Order No. 960.001. For the following reasons, the agency's decision is

AFFIRMED.

At the time in question, appellant was employed as a Preservation

Servicer, WG-7, at the Defense Supply Center in Mechanicsburg,

Pennsylvania. On May 9, 1994, two Production Controller positions

became vacant. The job elements described in the vacancy announcement

explained that successful candidates should be able to apply regulations

and guidelines, gather statistics, prepare reports, plan and schedule

work operations, reason and draw conclusions, and communicate orally and

in writing. On June 3, 1994, the SO received the referral list which

provided seven applicants (including appellant) for consideration. After

reviewing the applicants, the SO selected S1 and S2 for the positions.

The SO stated that S1 had previously served as his secretary and he knew

that she was fully capable of performing the duties of the position.

The SO stated that he was also familiar with the work of S2 because she

was his supervisor's secretary and had been detailed to his office on

previous occasions. In addition, the SO testified that the positions in

question primarily required administrative skills as explained by the job

elements and that S1 and S2 were the applicants that best satisfied the

needs of the positions. As for appellant's contention that he was best

qualified because of his prior industrial plant equipment knowledge,

the SO testified that prior equipment knowledge did not factor into

his decision because the positions involved the administrative portion

of production control. He stated that other members of the production

control team (planners and estimators) provided the technical expertise

regarding plant equipment.

Believing that he was the victim of discrimination, appellant sought EEO

counseling and, thereafter, filed a formal EEO complaint on September 7,

1994. The agency accepted the complaint for investigation and complied

with all of our procedural and regulatory prerequisites. Subsequently,

appellant requested a hearing before an EEOC Administrative Judge

(AJ). Following a hearing, the AJ issued a Recommended Decision (RD)

finding no discrimination. In her RD, the AJ concluded that appellant

established a prima facie case of discrimination based on sex and age.

The AJ then found that the selecting official ("SO") had articulated

legitimate, nondiscriminatory reasons for selecting S1 S2, namely that

S1 and S2 had extensive knowledge of production control functions and

procedures. Finally, the AJ concluded that appellant failed to show

that the agency's reasons for not selecting him amounted to a pretext

for discrimination. The agency's FAD adopted the AJ's RD. It is from

this decision that appellant now appeals.

After a careful review of the record in its entirety the Commission finds

that the AJ's RD sets forth the relevant facts and properly analyzes

the appropriate regulations, policies and laws. The Commission finds

that appellant failed to present evidence that he was nonselected

under circumstances that would give rise to an inference of sex or

age discrimination. Contrary to appellant's assertion, the evidence

does not clearly establish that his qualifications were plainly

superior to those of the selectees, thereby supporting a finding of

discrimination. See Vanek v. Department of the Treasury, EEOC Request

No. 05940906 (Jan. 16, 1997)(citing Bauer v. Bailor, 647 F.2d 1037, 1048

(10th Cir. 1987)). Therefore, after a thorough review of the evidence

of record, including arguments and evidence not specifically addressed

in this decision, the Commission discerns no basis to disturb the AJ's

finding of no discrimination. Nothing proffered by the appellant on

appeal differs significantly from the arguments raised before, and given

full consideration by, the AJ. Accordingly, it is the decision of the

Commission to AFFIRM the agency's final decision which adopted the AJ's

finding of no discrimination.

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. � l6l4.604(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. 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:

Jan 15, 1999

__________________ _______________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations