Charles Young, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionDec 8, 2000
01980224 (E.E.O.C. Dec. 8, 2000)

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.