Abdalla A. Ghazzawi, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 15, 1999
01973972 (E.E.O.C. Sep. 15, 1999)

01973972

09-15-1999

Abdalla A. Ghazzawi, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Abdalla A. Ghazzawi v. United States Postal Service

01973972

September 15, 1999

Abdalla A. Ghazzawi, )

Appellant, )

)

v. ) Appeal No. 01973972

) Agency No. HO-0165-95

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

_______________________________)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission after receiving a final

decision from the agency 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 (ADEA) of 1967, as amended, 29 U.S.C. �621 et seq.

The appeal is accepted in accordance with EEOC Order No. 960.001.

ISSUE PRESENTED

The issue presented in this appeal is whether appellant established, by

a preponderance of the evidence, that the agency discriminated against

him because of his age (DOB: 6/16/41), religion (Muslim), national origin

(Arab-Egyptian) and previous EEO activity when he was not selected for

five (5) positions.

BACKGROUND

Appellant sought EEO counseling on February 27, 1995. In June 1995, he

filed a formal complaint alleging that the agency discriminated against

him, as stated above, when he was not selected for any of the following

positions:

(1) Electronic Engineer, EAS-23;

(2) Information Sciences Specialist, EAS-25;

(3) Recognition Systems Specialist, EAS-25;

(4) Electronic Engineer, EAS-24;

(5) Recognition Systems Specialist, EAS-25; and

(6) Electronic Engineer, EAS-24.

On September 20, 1995, the agency issued a final decision accepting

allegations (5) and (6) for investigation. The agency dismissed

allegation (1) on the grounds of mootness. The agency dismissed

allegations (2) through (4) due to untimely EEO counselor contact.

Appellant, on appeal, did not challenge the agency's finding with regard

to allegation (1). In EEOC Appeal No. 01960442 (September 24, 1996), the

agency's dismissal of allegations (2)-(4) was reversed. These allegations

were also remanded for an investigation. The agency conducted separate

investigations of allegations (2)-(4) and (5) and (6). Upon completion

of both investigations, the agency issued a final decision, which found

no discrimination with regard to all five nonselections.<1> This appeal

followed.

The record indicates that appellant worked in the agency's Recognition

Systems Division located in Merrifield, Virginia (the Division).<2>

In August 1992, the agency announced a nationwide restructuring. The

restructuring reduced the number of management levels and affected some

30,000 positions. Appellant, at the time of the restructuring, held the

position of Electronic Project Engineer, EAS-23. According to the agency,

his position was eliminated, and he was considered along with others, for

new positions. During the restructuring, each department was responsible

for its own selection decisions. In the Division, these decisions were

made by the manager, A-1 (51, American, Lutheran). According to A-1,

he was aware of appellant's religion and place of birth, but he did not

know his age.

ANALYSIS AND FINDINGS

A prima facie case of reprisal is established by showing that: (1)

appellant engaged in protected EEO related activity; (2) the employer was

aware of the protected activity; (3) appellant was subsequently subjected

to adverse treatment; and (4) the adverse action followed the protected

activity within such a period of time that retaliatory motivation may

be inferred. Manoharan v. Columbia University College of Physicians and

Surgeons, 842 F.2d 590, 593 (2d Cir. 1988); Wrenn v. Gould, 808 F.2d

493, 500 (6th Cir. 1987); McKenna v. Weinberger, 729 F.2d 783, 790,

(D.C. Cir. 1984).

The record indicates that in April 1992, appellant filed an EEO complaint

that alleged discrimination based on national origin when he was not

selected for a higher level position. The EEO counselor told appellant

that she would speak to both A-1 and the Assistant Postmaster General,

A-2. Notwithstanding the EEO counselor's statement, A-1 denied having

any knowledge of appellant's prior EEO activity at the time he made the

five selection decisions that are at issue. Appellant offered no other

evidence that A-1 was aware of his prior EEO activity.

After a careful review of the record, we find that appellant did not

establish a prima facie case of discrimination based on reprisal. We

find no persuasive evidence that A-1 was aware of appellant's prior EEO

activity. In order to support his contention that A-1 was aware of his

EEO activity, appellant submitted a portion of the EEO counselor's report

that pertained to his April 1992 EEO counseling. The report indicated that

the EEO counselor met with A-2 in an attempt to resolve the matter. A-1,

however, was not mentioned. We also note that appellant did not seek EEO

counseling regarding his present complaint until February 27, 1995, which

was well after all of the selection decisions at issue had been made.

Appellant argued, among other things, that he was not selected for any

of the positions because of his age, national origin, and religion. Since

this allegation constitutes a claim of disparate treatment, it must be

analyzed under the tripartite analysis enunciated in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973); and Loeb v. Textron, Inc., 600 F.2d

1003 (1st Cir. 1979). Appellant has the initial burden of establishing,

by a preponderance of the evidence, a prima facie case of discrimination;

the burden then shifts to the employer to articulate some legitimate,

nondiscriminatory reason for its challenged action; and appellant must

then prove, by a preponderance of the evidence, that the legitimate

reasons offered by the employer were not its true reasons, but were

a pretext for discrimination. Appellant has the ultimate burden of

showing that discrimination occurred. Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 253 (1981).

We also note that, as part of his ultimate burden with regard to his

claim of age discrimination, appellant must also show that age was a

determinative factor in the discriminatory actions. LaMontagne v. American

Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir. 1984); Phebis

Bowens v. USPS, EEOC Appeal No. 01933155 (July 7, 1994).

After a careful review of the record, we find that appellant established

a prima facie case of discrimination based on age, national origin,

and religion. To establish a prima facie case, appellant need only

present evidence which, if unrebutted, would support an inference that

the agency's actions resulted from discrimination based on his age,

national origin, and religion. Furnco Construction Co. v. Waters, 438

U.S. 567, 576 (1978). Here, the record shows that the four selectees

for the positions at issue were C-1, C-2, C-3, and C-4. Their ages,

at the time of the selection decisions, were 28, 44, 42, and 43,

respectively. With respect to the bases national origin and religion,

appellant maintained that each of the selectees was an American and

a Christian. The agency, without providing specific details on these

matters, conceded that each selectee was of a different religion and

national origin than appellant and that he was able to establish prima

facie cases of discrimination.

(2). Information Sciences Specialist, EAS-25

A-1 selected C-1 for the position. Prior to the restructure, C-1 was a

Computer Systems Analyst, EAS-23. According to A-1, C-1 was among several

employees considered. A-1 maintained that there was no "applicant pool"

in the normal sense of the term. Pursuant to the restructure, A-1 stated

that the best available personnel were placed in the positions. A-1

emphasized that this was not a "normal" selection process.

(3). Recognition Systems Specialist, EAS-25

A-1 selected C-2 for the position. Prior to the restructure, C-2 was an

Electronic Engineer, EAS-25. According to A-1, C-2 received a lateral

assignment because he demonstrated extensive electronic design, project

management and communication skills. C-2 also served as an acting manager

for an extended period prior to his selection.

(4). Electronic Engineer, EAS-24

A-1 selected C-3 for the position. Prior to the restructure, C-3 was an

Electronic Engineer, EAS-23. According to A-1, he tried to place the best

qualified individual into the slot. C-3, he stated, had demonstrated

extensive digital design expertise. He also indicated that a number of

C-3's designs were released for production and deployment in the field,

and that C-3 had demonstrated excellent communication skills and the

ability to work well with and oversee others in design activities.

Unlike the last three positions, the selection decisions concerning the

next two positions were not made pursuant to the agency's restructure.

(5). Recognition Systems Specialist, EAS-25

A-1, in August 1994, selected C-3, the same individual he chose

for the Electronic Engineer position referenced above, to fill this

vacancy. According to A-1, he "[p]ersonally reviewed the applications of

the candidates and determined that no review committee was required. The

strongest candidates were all personally known to me and I selected

the best qualified without interviewing." Appellant, A-1 stated, was

weak in his knowledge of electronic design, and did not have current

experience with automated computer-aided design systems. He also found

that appellant had weak verbal and oral communication skills, and had

difficulty working well with others in a team environment. Finally,

A-1 stated that appellant did not demonstrate an ability to plan or

oversee design activities.

A-1 also maintained that:

the primary emphasis was being placed on electronic design capabilities,

and the ability to lead a small design team. The complainant had been

exclusively involved in software activities for many years and had stated

previously that he wanted to continue working in the software arena. The

successful candidate demonstrated significant hardware design skills

improving the wide area bar code reader . . . and in the design of a

new printer interface board to enable the MLOCRs to print the delivery

point bar code. He had extensive knowledge and experience in the use

of computer-aided engineering design tools, and the use of modern high

density programmable logic necessary for firmware implementations in

recognition systems. He demonstrated highly developed communications

skills in dealing with peers at the Engineering facility and the

maintenance organizations.

(November 16, 1995 Affidavit of A-1)

(6). Electronic Engineer, EAS-24

In February 1995, A-1 selected C-4 for the position. The record

indicates that fifteen (15) people applied for the vacancy, but the

review committee, which included A-1 and C-3, chose to interview C-4,

appellant, and a third individual. At the time of his selection, C-4 was

a Senior Computer Systems Analyst/Programer. C-4, A-1 noted, demonstrated

better design skills and the ability to solve problems, and had better

communication skills. According to A-1, a large emphasis was placed on

the interview process and the input of all the interviewers. Although

appellant placed a great deal of emphasis on his education and training,

A-1 maintained he had difficulty enunciating how he would approach new

design challenges. A-1 also stated that "[i]t was the consensus of all

of the interviewers that the complainant ranked significantly lower than

others being considered." Finally, A-1 indicated that a formal rating

system was not used to rank the candidates. At the conclusion of each

interview, A-1 stated that the review committee discussed each candidate,

and a consensus was formed as to who was the strongest candidate.

The Commission must now determine whether appellant was able to

establish, by a preponderance of the evidence, that the legitimate reasons

offered by the agency were not its true reasons, but were a pretext for

discrimination based on national origin, religion or age.

(2). Information Sciences Specialist, EAS-25

Although A-1 indicated that there was no "applicant pool" in the

normal sense of the term and that appellant was considered, the record

contains a copy of a document that was entitled, in part, "Placement

Pool." The names of C-1 and seven (7) other employees were listed on

the form. Appellant's name, however, was not on this form; consequently,

appellant was not considered for the position. Other than his statement

that, during the agency's restructure, the best available personnel were

placed in the available positions, A-1 provided no specific reasons why

appellant was not considered for the position. During the investigation,

A-1 was specifically asked "[w]as the complainant qualified for placement

into this position? If not, state what qualifications he needed for

the position." A-1 did not answer the questions. We find that A-1's

refusal to answer the above questions casts doubt on his claim that C-1

was the best available person to place in the position.

In St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993), the Court

held that a fact finder is not required, as a matter of law, to find

discrimination whenever it finds that the employer's explanation for

its actions is not credible. Id. at 519. The Court, however, made

clear that a fact finder may find discrimination in such circumstances.

Id. at 524. The critical factor is that a fact finder must be persuaded

by the complainant that it was discrimination that motivated the employer

to act as it did. Id.

In a nonselection case, one method of proving discriminatory intent is

showing that a complainant's qualifications were observably superior

to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th

Cir. 1981). The record indicates that appellant had Master's degrees in

both Computer Systems Management and Management and a Bachelor of Science

degree in Electronic Engineering. In contrast, C-1 only had a Bachelor of

Science degree in Computer Systems Engineering. Appellant's unrebutted

testimony was that, since 1985, he had been trained in every aspect of

Optical Character Reading (OCR) including Pattern Recognition Training,

while C-1 had no such training. Appellant also indicated that, at the

time of the selection, he had more than 12 years of Software Experience,

more than 8 years of OCR experience, more than 8 years of agency

experience and more than 5 years experience deploying OCR products.

C-1 had no Software Engineering experience, since this was his first job

after graduation and only twenty (20) months experience in one section

of OCR. Finally appellant noted that C-1 had no experience deploying

OCR products. We find that appellant's qualifications were observably

superior to those of C-1.

For all of the above reasons, we find that the preponderance of

the evidence indicates that appellant was better qualified for the

position than C-1. A-1's explanation that C-1 was the best qualified

applicant was not credible. We find that it was more likely that

appellant was discriminated against because of his national origin and

religion. However, appellant did not establish that age was a factor in

his nonselection.

(3). Recognition Systems Specialist, EAS-25

We again note that appellant's name was not included on the list of

employees who were considered for this position. Although A-1 was asked

"[w]as the complainant qualified for placement into this position over

[C-2]? If not, state what qualifications [C-2] possessed that the

complainant needed." Again, A-1 did not answer the questions. A-1's

silence does raise suspicions; however, after a careful review of the

record, we do not find that appellant established pretext. Notwithstanding

appellant's years of experience, education, and qualifications, the

totality of the evidence indicates that A-1's decision to laterally

reassign C-2 to the vacancy was not motivated by a discriminatory animus

against appellant. Among other things, A-1 noted C-2's prior managerial

experience as a reason for his selection. Although appellant argued that

the position was not a management position, the position description

indicates that management responsibilities were part of the incumbent's

duties. Therefore, C-2's management skills would have made him more

desirable for the position than appellant. Employers generally have

broad discretion to set policies and carry out personnel decisions, and

should not be second-guessed by reviewing authorities absent evidence

of unlawful motivation. Burdine, 450 U.S. at 259.

Accordingly, we do not find that appellant established that he was

discriminated against because of his national origin, religion or age.

(4). Electronic Engineer, EAS-24

The position description indicates that the incumbent of this position:

plans, organizes, and executes the design, construction, installation and

implementation of new systems, equipment, or controls of major magnitude

and scope, in support of the mail processing objectives of the Postal

Service.

Among other duties, the incumbent of the position was required to have

"frequent contact with contractors, professional consultants, officials

of government agencies, and equipment manufacturers."

After reviewing C-3's application and the position description for

the Electronic Engineer, EAS-24, position, we do not find pretext.

C-3's application indicates that he developed numerous designs. We also

note his work as a Program Manager and the principal Electronic Engineer

for a $5.4 million dollar project to develop a Remote Bar Coding Input

System. With regard to his nonagency employment, C-3 indicated that

he "wrote several winning proposals for contracts to develop digital

communications systems . . . ." Finally, his application indicates

that he was twice detailed as the Acting General manager for the Mail

Preparation Division for nine weeks and six months, respectively, and

addresses his interaction with groups within the agency. We find that

the preponderance of the evidence does not indicate that appellant was

more qualified for the position than C-3. Since the attributes indicated

by A-1 are reflected in the position description, we find that A-1's

testimony was credible.

Accordingly, we do not find that appellant established that he was

discriminated against because of his national origin, religion or age.

(5). Recognition Systems Specialist, EAS-25

In August 1994, A-1 selected C-3 to fill this position without

conducting interviews. Upon reviewing the position description, and

applications of appellant and C-3, we do not find that appellant's

qualifications were so observably superior to those of C-3 to indicate

pretext. On appeal, appellant argued that A-1 tailored the vacancy to

fit only C-3. According to appellant, A-1 "formed no review committee,

conducted [not a] single interview, and selected (pre-selected) [C-3]

in record time." The Commission, however, has found that preselection

does not violate Title VII when it is based on the qualifications of

the preselected party and not on some basis prohibited by Title VII.

Riddle v. Department of the Air Force, EEOC Request No. 05931012 (July

7, 1994); Marvin v. Veteran's Affairs, EEOC Appeal No. 01891677 (July

12, 1989); see also Goostree v. State of Tennessee, 796 F.2d 854, 861

(6th Cir. 1986). Assuming, arquendo, that C-3 was pre-selected by A-1,

appellant presented no persuasive evidence that it was based on any

impermissible reason.

Accordingly, we do not find that appellant established that he was

discriminated against because of his national origin, religion or age.

(6). Electronic Engineer, EAS-24

The record indicates that the purpose of the position was to oversee the

design and development of functional improvements to Optical Character

Readers and Pattern Recognition Systems. The first requirement for the

position was that the incumbent have a knowledge of the principles and

practices of electrical and electronic engineering. The record contains a

copy of the position description (PD). According to the PD, the position

required a graduate level understanding of electrical engineering. The

PD also indicated that the position required "extensive experience in

complex and diverse electronic engineering activities. Well-developed

human relations and communications skills."

Appellant's application, in addition to the matters indicated above,

indicated that he was an Electronic Engineer with over 10 years of agency

OCR and Pattern Recognition experience. As previously noted, C-4 was

not an Engineer. He was a Senior Computer Systems Analysts/Programer,

prior to the selection. We find nothing in C-4's application that

indicates he had, at the time of his selection, the necessary level of

knowledge of electrical engineering principles and practices. On the

contrary, he stated that his expertise was "demonstrated by real-time,

process control applications." However, he cited as an example of his

knowledge the fact that he replaced the Data General Nova 800 Computer,

"which required hardware analysis, vendor specification, diagnostic

routine modification."

We find that A-1's explanation, that C-4 was more qualified than appellant

for an engineering position that required a graduate level understanding

of engineering principles, was not credible. We also note that, despite

A-1's assertions that "a large emphasis was placed on the interview

process and the input of all the interviewers," the promotion report

for the position indicates that, like appellant, the review committee

did not recommend C-4.<3>

We find that the preponderance of the evidence indicates that appellant

was better qualified for the position than C-4.<4> We find that it was

more likely that appellant was discriminated against because of his

national origin and religion. However, appellant did not established

that his age was a factor in his nonselection.

CONCLUSION

Based upon a review of the record, and the foregoing reasons, it is

the decision of the Commission that the agency discriminated against

appellant on the bases of his national origin and religion when he

was not selected for the positions of Information Sciences Specialist,

EAS-25 and Electronic Engineer, EAS-24. Therefore, the agency's final

decision is REVERSED, in part, and AFFIRMED, in part. On remand, the

agency shall comply with the Order below.

ORDER

1. Within sixty (60) calendar days of the date this decision becomes

final, the agency shall promote the appellant to the Information Sciences

Specialist, EAS-25 position, retroactive to the date in 1992 when C-1 was

placed in the position.<5> Appellant shall be provided full seniority

and appropriate pay adjustments for any step increases he would have

received from 1992 to date, back pay, interest, and all other benefits

pursuant to 29 C.F.R. �1614.501. The appellant shall cooperate in the

agency's efforts to compute the amount of back pay owed and shall provide

all relevant information requested by the agency. If there is a dispute

regarding the exact amounts owed by the agency, the agency shall issue

a check to the appellant for the undisputed amount within thirty (30)

calendar days of the date the agency determines the amount it believes

to be due. The appellant may petition for enforcement or clarification

of the amounts in dispute. The petition for clarification or enforcement

must be filed with the Compliance Officer, at the address referenced in

the statement entitled "Implementation of the Commission's Decision."

2. The agency is directed to conduct EEO training for A-1. This training

shall address management responsibilities with respect to eliminating

discrimination in the Federal workplace and all other supervisory and

managerial responsibilities under equal employment law.

3. The agency, no later than 90 days from the date this decision becomes

final, shall conduct and complete a supplemental investigation in order to

determine appellant's entitlement, if any, to compensatory damages.<6>

4. The agency shall post, at the Recognition Systems Division,

Merrifield, Virginia copies of the attached notice. Copies of the notice,

after being signed by the agency's duly authorized representative,

shall be posted by the agency within thirty (30) calendar days of the

date this decision becomes final, and shall remain posted for sixty

(60) consecutive days, in conspicuous places, including all places

where notices to employees are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to be

submitted to the Compliance Officer within ten (10) calendar days of

the expiration of the posting period.

5. The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of back pay and other benefits due appellant, and

shall include evidence that the corrective actions ordered above have

been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory. The

agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report

shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503(a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. ��1614.408, 1614.409, and 1614.503(g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action" 29 C.F.R. ��1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c)(Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated. See

29 C.F.R. �1614.410.

ATTORNEY'S FEES (H1092)

If appellant has been represented by an attorney (as defined by

29 C.F.R. �1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint. 29

C.F.R. �1614.501(e). The award of attorney's fees shall be paid by the

agency. The attorney shall submit a verified statement of fees to the

agency-not to the Equal Employment Opportunity Commission, Office of

Federal Operations-within thirty (30) calendar days of this decision

becoming final. The agency shall then process the claim for attorney's

fees in accordance with 29 C.F.R. �1614.501.

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 (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court. 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. In the alternative,

you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR

DAYS of the date you filed your complaint with the agency, or filed your

appeal with the Commission. 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:

September 15, 1999

______________ __________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1Appellant, after both investigations, indicated that he wanted a final

decision without a hearing.

2According to appellant, the goal and function of the Division was to

design ways to recognize the alphanumeric characters that are on pieces

of mail. The primary piece of equipment used to accomplish this task was

the Multi-Line Optical Character Reader (MLOCR). Appellant's unrebutted

testimony was that: hardware design or digital design work is minimal at

the Recognition Systems Div. Software, MLOCR or pattern recognition

system is [sic] mentioned in every functional purpose or requirement

statement for the disputed positions.

3See Exhibit 5 of the Report of Investigation.

4A-1, throughout his testimony, referred to appellant's lack

of communication skills. We note, however, that the agency never

persuasively rebutted appellant's contentions that he made oral briefings

to United States Naval personnel, made numerous oral presentations about

computer and management issues at the Management and Technology Graduate

School, University of Maryland, and instructed electronic technicians

and software specialists during a four day course at Process Control

Division.

5In order to provide appellant with "make whole" relief in this case, we

have determined that he should be retroactively placed in the Information

Sciences Specialist (ISS) position. We note, in this regard, that the

ISS position is a higher graded position than the Electronic Engineer

position and that the discrimination took place earlier in time.

6In order to assess the claim, the agency shall request from appellant

evidence and testimony establishing any pecuniary and nonpecuniary injury

suffered and its link to his nonselections. See Carle v. Department

of the Navy, EEOC Appeal No. 01922369 (January 5, 1993); and Rivera

v. Department of the Navy, EEOC Appeal No. 01934157 (July 22, 1994).