01980224
12-08-2000
Charles Young, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Charles Young v. Defense Logistics Agency
01980224
December 8, 2000
.
Charles Young,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 01980224
Agency No. XL-96-023
Hearing No. 160-97-8068X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he was
discriminated against:
(1) based on disability (asthma), when he was advised by a Personnel
Staffing Specialist that he should not apply as a 30% disabled veteran
(non-competitive appointment authority) when applying for the position
of Freight Rate Specialist, GS-2131-6/7, job announcement no. 107-95,
but rather should apply under Merit Promotion Procedures;
(2) based on race (African-American), sex (male), age (over forty -
unspecified), and reprisal (prior EEO complaint, DLA Case No. XR-88-002),
when, on November 17, he was notified that he was not selected for
the Freight Rate Specialist position;<2>
(3) based on his race, sex, and reprisal when, in November 1995, he
became aware that he had been denied an opportunity to be detailed to
a unique unit;<3> and
(4) based on race, sex, and reprisal when, in November 1995, he became
aware that he had been denied on-the-job training, overtime, and awards
received by other members of his unit.
For the following reasons, the Commission AFFIRMS the FAD's finding of
no discrimination.
The record reveals that complainant, a Procurement Clerk, GS-1106-6,
at the agency's Defense Contract Management Command facility in Staten
Island, New York, filed a formal EEO complaint with the agency on April
30, 1996, alleging that the agency had discriminated against him as
referenced above. At the conclusion of the investigation, complainant
received a copy of the investigative report and requested a hearing
before an EEOC Administrative Judge (AJ).
Following a hearing, the AJ issued a decision finding no discrimination.
With respect to claim (1), the AJ found that complainant had failed
to establish a prima facie case of discrimination based on disability
because he had not established that he is an individual with a disability
within the meaning of the Rehabilitation Act.
With respect to claim (2), the AJ noted that complainant had not
established a prima facie case of reprisal because the selecting
official was not aware of complainant's prior EEO activity. However,
the AJ found that assuming arguendo complainant established a prima
facie case of discrimination based on race, sex, age, or reprisal,
complainant failed to demonstrate by a preponderance of the evidence
that the agency's proffered legitimate reasons for his non-selection
were a pretext for discrimination or retaliation. Specifically,
the AJ found that complainant did apply and was considered for the
Freight Rate Specialist position under merit promotion procedures, was
found eligible for the position, and was interviewed along with three
other candidates. The AJ credited the selecting official's testimony
that the selectee (African-American, female, under age 40) was selected
based on her superior training, experience, and interview performance,
as well as the fact that she was already performing some Freight Rate
Specialist functions, and had performed some export functions in her
former position as a Customs Clerk. The AJ also credited the selecting
official's testimony that complainant's application and interview answers
reflected that he would need extensive training compared to the selectee.
The AJ further found that while complainant alleged the selectee was
"pre-selected," the evidence did not support this contention, and that
even if it did, complainant failed to show that his qualifications
were plainly superior to those of the selectee, or otherwise to present
evidence sufficient to permit an inference that his non-selection was
motivated by discriminatory or retaliatory intent. In reaching these
conclusions, the AJ credited testimony by the selecting official that the
reason the selectee had already acquired relevant experience was not due
to pre-selection but rather that she had been reassigned to his unit as
a secretary during a 1995 reorganization, and had subsequently assumed
some Freight Rate Specialist duties when two employees left the agency.
To the extent complainant contended that an agency Colonel
(African-American, male, over age 40) had stated that the federal work
force was "too old" and therefore "we need to look to colleges to recruit
new members," the AJ found that the Colonel credibly testified that he
had in fact noted that ninety percent of his staff was over age forty,
and separately stated that if they did not bring in new people to the
agency, they would soon be out of business. The AJ found these remarks
insufficient to establish that "but for" age discrimination complainant
would have been selected for the Freight Rate Specialist position.
With respect to claim(3), the AJ credited testimony by the agency Colonel
that complainant was not eligible to be detailed to a unique unit because
he did not work in the GS-1102 series. With respect to claim (4), the
AJ credited the testimony of complainant's first-line supervisor from
July 1995-July 1996 (S1), that he did not give any awards or on-the-job
training to any employee, and that he did arrange for complainant to
take an off-site training class. The AJ also found complainant's
second-line supervisor during this period (S2) credibly testified that
the only overtime work available was in the administrative function, not
for Procurement Clerks. Further, the AJ found that S1 and S2 credibly
testified they were unaware of complainant's prior EEO activity.
Complainant has submitted no contentions on appeal, and the agency
requests that we affirm its final decision.
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).
In reviewing this appeal, we do not reach the issue of whether or not
the AJ correctly decided that complainant failed to demonstrate he is an
individual with a disability within the meaning of the Rehabilitation
Act. Rather, after a careful review of the record, we find that even
assuming arguendo that complainant is an individual with a disability,
and further assuming he established a prima facie case on any alleged
basis, the AJ's findings of no discriminatory or retaliatory intent
are supported by substantial evidence in the record, for the reasons
noted above. Further, we note with respect to claim (1), although the AJ
made no factual findings about the merits of the claim, the evidence is
insufficient to demonstrate by a preponderance that the Personnel Staffing
Specialist acted with discriminatory intent, regardless of whether
or not her interpretation of the applicable guidelines was accurate,
when she advised complainant that if he applied and was selected for
the Freight Rate Specialist position under non-competitive appointment
authority, he would hold a temporary appointment and thus be subject to
reduction-in-force (RIF) if a RIF occurred.
Therefore, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM the
FAD's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
December 8, 2000
__________________
Date
1 On 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 29 C.F.R. Part 1614 in
deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at www.eeoc.gov.
2As part of this claim, complainant further alleged that this
non-selection was part of a pattern of discrimination in the agency
against African-American males.
3Complainant did not allege that he requested a particular detail, but
that based on discrimination he and other African-American males were
in general not detailed to the unique units.