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).