0120072464
09-07-2007
Dennis R. McElroy, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Dennis R. McElroy,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120072464
Agency No. 0607030
Hearing No. 560-2007-00008X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's March 23, 2007 final decision concerning
his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Complainant
alleged that the agency discriminated against him on the basis of age
(D.O.B. 02/27/58) when:
1. he was not selected for the position of GS-0343-13 Program Analyst
advertised under Vacancy Announcement Number MS-CKC-VE-05-169; and
2. he was not selected for the position of GS-0343-13 Program Analyst
advertised under Vacancy Announcement Number DE-CKC-VE-05-054.
Complainant was employed at the agency as an Assistant Director, Veterans
Employment and Training Service (ADVETS) (Veterans' Program Specialist),
at the agency's facility located in Jefferson City, Missouri. The record
reflects that the positions at issue in claims (1) and (2) were the same
position. Complainant was among the top two candidates; however, he was
not selected for the position. The selectee was considered to be the
better candidate due to his law degree, past experiences, and excellent
work ethic. Complainant makes numerous contentions, including among
other things, that the position did not require a law degree, that his
qualifications were clearly superior to the selectee's, and that there
were errors in the processing of the candidates. We find, however, that
complainant failed to establish that the agency's proffered reason for
not selecting him was a pretext for age discrimination. Complainant
has not shown that the disparities in qualifications between him and
the selectee are "of such weight and significance that no reasonable
person, in the exercise of impartial judgment, could have chosen the
[selectee] over [him] for the job in question." Ash v. Tyson Foods,
Inc., 190 Fed.Appx. 924, 88 Empl. Prac. Dec. P 42,608 (11th Cir. 2006),
cert. denied, 127 S.Ct. 1154 (Jan. 22, 2007). Therefore, we find that the
record reflects that complainant failed to establish, by a preponderance
of the evidence that he was discriminated against based on his age.
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 decision
because the preponderance of the evidence of record 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
__9/07/07________________
Date
2
0120072464
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120072464