01A52918
07-21-2006
Anselmo L. Abulencia, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Anselmo L. Abulencia,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A52918
Agency No. 2003-0549-2004100245
Hearing No. 310-2004-00497X
DECISION
Complainant filed an appeal with this Commission concerning his complaint
of unlawful employment discrimination. Complainant alleges discrimination
on the bases of race (Filipino) and national origin (Asian Pacific
Islander) when, on September 25, 2003, management failed to promote
complainant to the position of Management Analyst, GS-343-9, Vacancy
Announcement No. 03-B3-163.
Following a hearing, an EEOC Administrative Judge (AJ) issued a decision on
January 5, 2005, finding that complainant had not been discriminated
against. Specifically, the AJ found that the agency presented legitimate,
nondiscriminatory reasons for its actions, which complainant failed to
rebut.
On February 15, 2005, the agency issued a decision finding no
discrimination. The agency fully implemented the AJ's decision.
Thereafter, complainant filed the instant appeal.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal Camera
Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed
is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293
(1982). An AJ's conclusions of law are subject to a de novo standard of
review, whether or not a hearing was held.
We find that the agency articulated a legitimate, nondiscriminatory reason
for the nonselection. The Administrative Officer, the Selecting Official
(SO), said that she used the five factor quality levels (FQL) scores that
already existed for the position. The SO stated that the questions were
designed to elicit information to be used in the rating of the applicants
against each of the five FQL scores. The SO asserted that she and the
Automated Data Processing Applications Coordinator jointly rated each
applicant's interview performance. The SO argued that complainant's five
FQL scores added to 15 points whereas the selectee's total was 19 points.
The AJ found that the selecting official explained that complainant had
less technical expertise in working with software packages, complainant had
no experience with the "DSS" system and "CDR" (both DSS and CDR apparently
deal with agency cost accounting), he was not forthcoming about his
education, and that he cursed several times during the interview. The
selecting official, however, indicated that the selectee was able to
describe how the DSS system worked and was very familiar with DCR.
The Commission finds that complainant failed to rebut the agency's
articulated a legitimate, nondiscriminatory reason for the selection
decision. Furthermore, complainant failed to show that his qualifications
for the position were plainly superior to the selectee's qualifications or
that the agency's action was motivated by discrimination. The AJ's
decision is supported by substantial evidence. Complainant failed to show,
by a preponderance of the evidence, that he was discriminated against on
the bases of race or national origin.
The agency's decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this case
if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous
interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and
arguments must 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 timely filed if it is received by mail within five days of
the expiration of the applicable filing period. See 29 C.F.R. � 1614.604.
The request or opposition must also include proof of service on the other
party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 21, 2006
__________________
Date