An-Ti Chai, Appellant,v.Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity CommissionNov 3, 1999
01975592 (E.E.O.C. Nov. 3, 1999)

01975592

11-03-1999

An-Ti Chai, Appellant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.


An-Ti Chai, )

Appellant, )

) Appeal No. 01975592

v. ) Agency No. NCN-95-LERC-A058

) Hearing No. 220-97-5021X

Daniel S. Goldin, )

Administrator, )

National Aeronautics and )

Space Administration, )

Agency. )

)

DECISION

Appellant timely initiated an appeal of a final agency decision (FAD)

concerning his Equal Employment Opportunity (EEO) 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.

Appellant alleges that he was discriminated against on the bases of race

(Asian), national origin (Chinese) and in reprisal for prior EEO activity

when the agency did not select him to be Chief of the Microgravity

Fluids Branch in the Space Experiments Division. In accordance with

EEOC Order No. 960.001, the Commission accepts the appeal and for the

following reasons, affirms the FAD.

The record reveals that appellant, an Aerospace Engineer at the agency's

Lewis Research Center in Cleveland, Ohio, filed a formal EEO complaint

with the agency on July 28, 1995. At the conclusion of the investigation,

appellant requested a hearing before an EEOC Administrative Judge (AJ).

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

no discrimination. The agency's FAD adopted the AJ's RD.

The AJ determined that although appellant failed to establish a prima

facie case of race discrimination since the selectee was also Asian,

he established a prima facie case of national origin discrimination and

retaliation. The AJ found that the agency articulated a legitimate,

nondiscriminatory reason for its selection, namely, that the selectee

was the best qualified candidate for the position. The AJ concluded that

appellant did not establish that the agency's articulated reason for his

nonselection was a pretext for unlawful discrimination. In reaching this

conclusion, the AJ credited the Selecting Official's testimony that the

selectee was the unanimous choice of the interview panel. The selectee

had a Ph.D. in fluid physics and a record of both experimental and

analytical diagnosis. Additionally, while the selectee was Acting

Branch Chief, his performance was outstanding. Without making a specific

finding of preselection, the AJ noted that preselection is not unlawful

when it is based on the qualifications of the selectee and not on a basis

prohibited by Title VII. See McAllister v. United States Postal Service,

EEOC Request No. 05931038 (July 28, 1994); Goostree v. State of Tennessee,

796 F.2d 854, 861 (6th Cir. 1986).

Appellant submits a sixty five page brief in support of his appeal.

The brief attempts to discredit all of the agency's explanations for

its selection and to restate arguments previously made at the hearing.

Appellant also contends that the AJ erred when: (1) he failed to find

a prima facie case of race discrimination, arguing that the selectee

had different facial features and skin color; and (2) he denied the

submission into the record of a United States Department of Agriculture

publication listing stereotypes associated with Asian Pacific employees.

In response, the agency submits a brief in support of the FAD's findings.

Upon review, the Commission finds that the RD summarized the relevant

facts and referenced the appropriate regulations, policies, and laws.

We remind appellant that an AJ has broad discretion to exclude evidence

he deems irrelevant or repetitious. See 29 C.F.R. � 1614.109(c); Malley

v. Department of the Navy, EEOC Appeal No. 01951503 (May 22, 1997).

We also remind appellant that an employer has even greater discretion

when selecting a management level employee, as in the instant case. See

Abood v. Agency for International Development, EEOC Appeal No. 01943562

(August 31, 1995); Wrenn v. Gould, 808 F.2d 493, 502 (6th Cir. 1987).

Appellant alleges that the entire selection process was slanted to favor

the selectee. We find, however, as did the AJ, that appellant failed to

support his contention that he was better qualified for or more deserving

of the position than the selectee. Moreover, after reviewing appellant's

multiple arguments on appeal, we agree with the AJ that appellant did

not proffer any credible evidence which would support a finding that

discriminatory animus motivated the agency's action.

The AJ based his decision on a detailed assessment of the record and the

credibility of the witnesses. In general, the Commission accepts an AJ's

credibility determination. Esquer v. United States Postal Service, EEOC

Request No. 05960096 (September 6, 1996). We discern no reason to disturb

the AJ's finding of no discrimination. Accordingly, 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:

November 3, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations