01974192
04-10-2000
Anthony L. Bonamego, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Anthony L. Bonamego v. Department of the Air Force
01974192
April 10, 2000
Anthony L. Bonamego, )
Complainant, )
) Appeal No. 01974192
v. ) Agency No. 952127
) Hearing No. 320-95-8342X
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Complainant filed a timely appeal from a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of national origin (Italian), sex (male), age (53), physical
disability (respiratory insufficiency), and mental disability (rumored
mental instability), in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. � 000e et seq.; the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq.; and
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791, et seq.<1>
Complainant claims that he was discriminated against when he was not
selected for the GS-11 position of Family Support Director (Position)
on January 17, 1995. We accept the appeal in accordance with EEOC
Order No. 960.001. For the reasons that follow, the agency's decision
is AFFIRMED.
During the relevant time complainant was employed with the agency as a
GS-9 Family Life Skills Education Specialist at its Family Support Center
(FSC) at Ellsworth Air Force Base, South Dakota. After completing EEO
counseling, complainant filed a formal complaint on February 8, 1995,
and the agency investigated his claim of discrimination. Complainant then
requested a hearing before an EEOC Administrative Judge (AJ). Following a
hearing, the AJ issued a Decision (RD) finding no discrimination.
The record reveals that complainant was one of eight applicants on a
referral certificate for the Position. The selecting official (SO),
a base Commander, chose the selectee (SE), a 42 year old white female
with no disabilities. SO developed the selection criteria, which
consisted of performance appraisals, awards, training, experience,
and education, with an emphasis on experience in FSC. No interviews
were conducted. According to the record, SE was selected based on her
recent and continuous experience in the FSC, especially her role as the
current Acting Director. Her personality and her dynamic public speaking
skills were also noted as additional reasons for her selection during
the hearing. Complainant contends that he was far better qualified
than SE based on the rating criteria, arguing that he had more relevant
experience and better education. Complainant avers that his non-selection
for the Position was the result of SO's discriminatory animus toward him.
The AJ concluded that complainant failed to establish a prima
facie case of disability discrimination because he failed to provide
sufficient evidence<2> to show that he had, or was perceived to have,
a physical or mental impairment that substantially affected a major life
activity as defined under the Rehabilitation Act and the Commission's
implementing regulations at 29 C.F.R. �1630.<3> Moreover, the AJ held
that complainant failed to show any nexus between his claimed disabilities
and his non-selection, thereby also defeating his allegation of disability
discrimination.
In addressing complainant's other bases of discrimination, the AJ
concluded that he established a prima facie case of sex, age<4>, and
national origin discrimination because SE was not in any of these same
protected classes as complainant. The AJ then concluded that the agency
articulated legitimate, nondiscriminatory reasons for its actions,
namely, that SO used valid, fair and objective selection criteria,
equally applied to each candidate, and that SE was selected because of
the "quality and recency" of her experience, particularly her role as
the current Acting Director in the Position.
The AJ then determined that complainant failed to show that these reasons
were a pretext for discrimination<5>. The RD sets out in great detail
all of complainant's many arguments advanced prior to and during the
hearing, carefully analyzing each, but finding that the evidence failed
to show that SO was motivated by discriminatory animus. Moreover, the
AJ did a detailed review of complainant's and SE's qualifications and
found that complainant's qualifications were not "plainly superior"
to that of SE's, and that the record demonstrated that SO selected
SE because he believed her to be best qualified for the Position.
Vanek v. Department of the Treasury, EEOC Request No. 05940906 (January
16, 1997). The AJ also held that employers have greater latitude when
selecting its managers, and that the EEO process is not to be used as a
substitute for a management decision which may appear unfair, but which
was not motivated by discriminatory animus. See Loving v. Department of
Treasury, EEOC Appeal No. 01974454 (July 2, 1999) and Lloyd v. Department
of Justice, EEOC Appeal No. 01952370 (May 6, 1997).
The agency's FAD adopted the RD. On appeal, complainant repeats many
of the arguments previously considered by the AJ, and contends that
the AJ erred when he failed to find a prima facie case of disability
discrimination, and when he determined that the agency's witnesses,
particularly SO, provided credible testimony at the hearing. In its
response, the agency sets forth arguments in support of its FAD.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at 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 that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the
AJ's RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We find that the AJ gave full and
thoughtful consideration to the arguments presented at the hearing,
and correctly concluded that complainant presented insufficient evidence
that his non-selection for the Position was motivated by discriminatory
animus toward his national origin, sex, age, or disability. We find
that the AJ rendered the correct decision in this case, and we discern
no basis upon which to overturn the finding. Accordingly, it is the
decision of this Commission to AFFIRM the FAD which adopted the AJ's
finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
April 10, 2000
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV
2The RD referenced complainant's 30% disability rating from the Department
of Veterans Affairs (VA). This can be a factor in determining whether an
individual has a "disability" under the criteria of the Rehabilitation
Act. The VA, however, employs different eligibility standards, and
a VA disability rating, without further evidence, in most instances,
cannot be used to establish a "disability" under the Rehabilitation Act.
3The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website: WWW.EEOC.GOV.
4Although complainant and SE were both over 40 years of age at the time
of the selection, complainant is significantly older than SE, so that
a prima facie case of age is established. Vasquez v. Department of the
Army, EEOC Appeal No. 01933469 (July 11, 1994).
5The AJ also held that complainant failed to show that age was a
determinative factor in the selection process, and did not find that the
"recency" criteria was discriminatory toward older applicants. See Loeb
v. Textron Inc., 600 F.2d 1003 (1st Cir. 1979) and Fodale v. Department of
Health and Human Services, EEOC Request No. 05960344 (October 16, 1998).