01986560
11-09-1999
Barney Imus, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Barney Imus v. Department of Veterans Affairs
01986560
Barney Imus, )
Complainant, )
)
v. )
) Appeal No. 01986560
Togo D. West, Jr., ) Agency No. 97-1318
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
On August 28, 1998, complainant timely filed an appeal with the Commission
from a final agency decision (FAD) pertaining to his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The
Commission accepts the appeal in accordance with EEOC Order No. 960.001.
The record reveals that during the relevant time, complainant was
employed as a Medical Supply Technician, at the VAMC in Reno, Nevada.
Complainant contacted the EEO office regarding claims of employment
discrimination based on age. Informal efforts to resolve complainant's
concerns were unsuccessful. Complainant filed a formal complaint, dated
April 18, 1997, claiming that he was subjected to discrimination when:
on February 4, 1997, he was not promoted and selected for the position
of Materials Handler, WG-6907-5. Following an investigation of his
complaint, the agency informed complainant of his right to request either
an EEO administrative hearing or an immediate FAD. Complainant requested
a hearing, but because he did not contact the administrative judge (AJ),
the AJ returned the case to the agency for dismissal or the issuance of
a FAD based on the existing record.
The agency issued a FAD, dated July 22, 1998, finding that complainant had
not been discriminated against. According to the agency, complainant was
one of thirteen people that applied for the Materials Handler position.
Six employees, including complainant, were rated as "best qualified".
Of the six, the selectee was the only individual under the age of forty.
In support of his decision, the selecting official (SO) indicated that
because the material handlers section contained a small number of workers
and because of the amount of work involved, he wanted someone who was a
team player; who could get along well with his peers; and who expressed
some initiative. The SO stated that although complainant was qualified
for the position, he "didn't feel that [complainant] was a particularly
good fit for that position." The selectee had recent experience as a
medical supply corpsman in the army, worked for several years in his
father's warehouse, and appeared to be people oriented, which the SO
found conducive for good customer service. According to the SO, the
selectee simply did "an outstanding job at the interview."
In support of his claim, complainant asserted that one of the applicants
over age forty had "more total experience in warehousing" than the
selectee, and another had "more recent experience in the hospital
warehouse." Complainant also noted that, prior to his selection for the
position, the selectee had only worked at the agency for a few months,
while the other applicants had been with the agency for much longer.
After a careful review of the record, based on McDonnell Douglas v. Green,
411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981); U. S. Postal Service Bd. of Governors v. Aikens,
460 U.S. 711 (1983), the Commission finds that complainant failed to
present evidence that more likely than not, the agency's articulated
reasons for its actions were a pretext for discrimination. In reaching
this conclusion, we note that complainant's primary contention is that
he was the best qualified. The record, however, does not support
this contention. The complainant did not receive a higher rating
that the selectee. Moreover, the SO indicated that the selectee was
a team player with initiative and an awareness of customer service,
while complainant did not "match up to those requirements." Therefore,
the Commission finds that complainant has not established that he was
discriminated against as claimed.
Accordingly, the agency's decision finding no discrimination was proper
and is AFFIRMED.
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:
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 after it was mailed. I certify
that this 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.