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