Arthur E. Thomson, Complainant,v.Timothy F. Geithner, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionAug 26, 2009
0120091959 (E.E.O.C. Aug. 26, 2009)

0120091959

08-26-2009

Arthur E. Thomson, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.


Arthur E. Thomson,

Complainant,

v.

Timothy F. Geithner,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 0120091959

Hearing No. 530200900471X

Agency No. MINT0804220F

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's March 19, 2009 final order concerning his

equal employment opportunity (EEO) complaint alleging employment

discrimination in violation of the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Complainant alleged

that the agency discriminated against him on the basis of age (54 years

at time of incident) when:

1. On December 17, 2007, complainant was not selected for the

position of Facilities Management Specialist.

Following the agency's investigation, complainant requested a hearing

before an EEOC Administrative Judge (AJ). The agency submitted an

unopposed motion for a decision without a hearing and on March 16, 2009,

the AJ granted the agency's motion and issued summary judgment finding

no discrimination. Specifically the AJ found that complainant failed to

establish a prima facie case of age discrimination because the selectee

(S), was also over 40 and was not significantly younger than complainant,

being less than five years younger. The AJ next found that, assuming

arguendo that complainant established a prima facie case, the agency

articulated a legitimate, nondiscriminatory reason for its action.

The AJ noted that the selecting official (SO) said that he selected S

"based on his many years of experience preparing statements of work for

contracted construction and maintenance, contractor quality oversight and

legal technician representation for the Contracting Officer. He stated

that [S] possessed a broad range of building, construction, workmanship,

code and maintenance knowledge in various trades." AJ's Decision.

The AJ further found that complainant "conceded that he did not possess

the specialized experience that S did, and that he had never requested

such training. He felt that S had been pre-selected and groomed for the

position, but presented no evidence to support that contention, nor that

such pre-selection was based on age rather than any other factor." Id.

Finally, the AJ found that complainant failed to establish that the

agency's articulated reason was a pretext for discrimination based on age.

The agency subsequently adopted the AJ's decision.

On appeal, complainant presents no new arguments or evidence. After a

review of the record in its entirety, including consideration of

all statements submitted on appeal, it is the decision of the Equal

Employment Opportunity Commission to affirm the agency's final order,

because the Administrative Judge's issuance of a decision without a

hearing was appropriate and a preponderance of the record evidence does

not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court

that the Court appoint an attorney to represent you and that the Court

also 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 with the Court 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

August 26, 2009

__________________

Date

2

0120091959

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0120091959