01A10695
05-24-2002
David Dean, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
David Dean v. Department of the Army
01A10695
May 24, 2002
.
David Dean,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A10695
Agency No. BODUFO980610070
Hearing No. 140-99-8067X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., on the
bases of race (Caucasian),<1> sex (male), age (DOB: 5/29/38), disability
(deaf and severe back injury), and reprisal (prior EEO activity) when
the agency did not consider his veteran's preference and selected another
employee for the position of Chief, Non-Appropriated Fund (NAF) Personnel
(Plan/Series/level: NF-0201-04).
On appeal, complainant argues that the selecting official should not have
been considered credible since she is under investigation for engaging in
�illegal and inappropriate� actions. We find this statement vague and
not previously raised during the EEO investigation. Moreover, we note
that complainant failed to raise this issue before the Administrative
Judge (AJ) when she gave complainant an opportunity to show that a
genuine material fact was in dispute sufficient to require a hearing.
Nevertheless, we find complainant's assertion, on appeal, insufficient to
establish a genuine dispute with respect to the issue of whether or not
the evidence in the record could establish pretext. We agree with the
AJ and find that complainant could not establish that his qualifications
were plainly superior to the selectee's qualifications. Moreover, we
agree that complainant failed to present any evidence of discriminatory
or retaliatory animus on the part of the selecting official. The fact
that the selecting official is under investigation for some type of
inappropriate or illegal conduct (not related to complainant) does
not suggest that her failure to select complainant was motivated by
discriminatory or retaliatory animus.
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 (M0701)
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
May 24, 2002
__________________
Date
1 Complainant's race claim was withdrawn after complainant discovered
that the selectee's race is the same as complainant's.