0120071091
03-19-2009
Barry A. Ormond, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Barry A. Ormond,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120071091
Agency No. P-2004-0193
Hearing No. 120-2005-00275X
DECISION
Complainant filed an appeal with this Commission concerning his
complaint of unlawful employment discrimination. Complainant alleges
discrimination on the bases of sex (male) and in reprisal for prior
protected EEO activity when complainant was not selected for the position
of Correctional Program Specialist (EEO Investigator) under Vacancy
Announcement No. 03-CO-211 in February 2004 .
Following a hearing, an EEOC Administrative Judge (AJ) issued a decision
on September 28, 2006, 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 November 14, 2006, the agency, fully implementing the
AJ's decision, issued a decision finding no discrimination. 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 Recommending Official (RO) stated that she met with the Selecting
Official (SO) and gave him a summary of the candidates and the
attributes that she was looking for in the position. The RO said that
she recommended that the selectee be selected because of her strong
Human Resources (HR) background which she thought was most important for
an EEO Investigator. The RO testified that she informed the SO of the
EEO Counselor's strong recommendation of complainant. The RO asserted
that she thought personnel experience was important because so many
EEO complaints were based on personnel issues and she thought that EEO
principles could be taught, but that HR knowledge was better acquired
by experience. The RO claimed that the EEO Counselor, who worked under
her and who had been an EEO Investigator, called her and told her that
the selectee was a hard worker, a good person and a good personnelist
and that her personality and skills would be a good fit.
The SO asserted that he selected the selectee for the position in question
based solely upon the RO's recommendation. The SO stated that he recalled
that the RO told him that the selectee had the qualities that she was
looking for but did not remember any details. The SO claimed that he
left it up to his managers to make recommendations for positions under
them and usually selected their recommendation unless he had seen problems
with other choices they had made in the past. The SO stated that he had
confidence in the RO and relied on her recommendation. The SO said that
the RO discussed the applicants with him; that there were three people
being considered; and that she thought one would be most effective.
The SO stated that the RO told him that she had received very positive
feedback about the selectee's abilities. The SO asserted that he did
not personally review the applications, but rather based his selection
on the RO's description of the skill sets of the applications and the
recommendation the RO had received.
Complainant failed to rebut the agency's articulated legitimate,
nondiscriminatory reasons for the selection decision. Furthermore,
complainant failed to show that his qualifications for the Correctional
Program Specialist (EEO Investigator) position were plainly superior to
the selectee's qualifications or that the agency's action was motivated
by discrimination. Complainant failed to show, by a preponderance of
the evidence, that he was discriminated against on the bases of sex
or reprisal. The AJ's decision is supported by substantial evidence.
The agency's decision is AFFIRMED.
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
March 19, 2009
__________________
Date
2
0120071091
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013