01A11444
06-26-2001
Edward Ueber, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Edward Ueber v. Department of Commerce
01A11444
06-26-01
.
Edward Ueber,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A11444
Agency No. 98-54-0091
Hearing No. 370-99-X2358
DECISION
Complainant timely initiated an appeal from the agency's final decision
of November 9, 2000, concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The
appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant claims that he was discriminated against on the bases of his
age (55) and sex (male) when, in 1996 and 1997, he was not selected for
the position of Superintendent, Monterey Bay National Marine Sanctuary,
GS-301-14 (the Position).
Complainant filed a formal EEO complaint raising the issue stated
above. The complaint was investigated and thereafter, complainant
requested a hearing before an EEOC administrative judge (AJ). After
considering the motion for summary judgment filed by the agency<1>, the
AJ issued a decision without a hearing, which found no discrimination.
The agency adopted the AJ's decision as its final order. Complainant
now appeals the final order but offers no specific contentions on appeal.
The record shows that complainant applied for the position in question
under three separate vacancy announcements (VA). Under the first VA,
complainant was one of seven (7) candidates interviewed by a selection
panel. None of the 7 candidates were selected because all of them
were found to lack the requisite leadership skills for the position.
Under a second VA, complainant and thirty-three (33) individuals
applied. Complainant was ranked thirteen (13) and therefore was not one of
the seven (7) applicants interviewed. A female individual (the selectee),
younger than complainant, was chosen for the Position. Shortly afterward,
however, the selectee's employment with the agency ended. Another VA was
issued for the Position and complainant applied. Complainant was not
considered under this third VA because he had previously been screened
out or eliminated from contention for failing to meet the leadership
criteria. A male individual, younger than complainant was ultimately
selected for the Position.
The AJ found that complainant established a prima facie case of
sex and age discrimination. The AJ also found that the agency
articulated a legitimate, nondiscriminatory reason for its action,
namely that complainant lacked the requisite leadership attributes
for the Position, including vision, interpersonal communication and
conflict management skills, team work and team building abilities,
and strategic planning capabilities. The AJ observed that complainant's
history of prior performance deficiencies in these areas was the subject
of extensive documentation submitted by the agency. According to the
AJ, the documentation showed that complainant had previously engaged
in unprofessional turf battles with co-managers, was unable to work
cooperatively with agency staff, and had initiated disputes which were
exposed in the media and reflected poorly on the agency.
Last, the AJ found that complainant failed to prove pretext. The AJ
concluded that complainant offered no evidence (and the record contained
no evidence) that the agency's specific reasons for his nonselection
were a pretext to mask sex and age discrimination.
After a careful review of the entire record, the Commission concludes that
the AJ accurately set forth the relevant facts and properly analyzed the
case using the appropriate regulations, policies, and laws. Based on
a thorough review of the record, including all evidence and arguments
not specifically mentioned herein, the Commission finds no basis to
disturb the AJ's finding of no discrimination. Accordingly, it is the
decision of the Commission to AFFIRM the agency's final decision because
complainant failed to prove, by a preponderance of the evidence, that
he was discriminated against on the bases of his age and his sex.
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
___06-26-01_______________
Date
1 The record shows that complainant did not file a response with the
AJ to the agency's motion for summary judgment.