01a04249
07-28-2000
Gary V. Steward, Complainant, v. William S. Cohen, Secretary, (Defense Logistics Agency), Department of Defense, Agency.
Gary V. Steward v. Department of Defense
01A04249
July 28, 2000
.
Gary V. Steward,
Complainant,
v.
William S. Cohen,
Secretary,
(Defense Logistics Agency),
Department of Defense, Agency.
Appeal No. 01A04249
Agency No. JQ-99-031
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint of unlawful employment discrimination in
violation of 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.<1>
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405).<2> Complainant alleged that he
was discriminated against on the bases of his age (August 25, 1948)
and physical disability (epilepsy - focal point seizure) when he was
not selected for the position of Heavy Equipment Mechanic Inspector in
February 1999. For the following reasons, the Commission affirms the
agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Blocker/Bracer at an agency Depot in Texarkana, Texas. Believing
the agency discriminated against him, complainant sought EEO counseling
and subsequently filed a formal complaint on March 30, 1999. At the
conclusion of the investigation, complainant was informed of his right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. Upon complainant's request,
the agency issued its final decision from which complainant now appeals.
On appeal, complainant contends that he was observably superior to the
selectee because he was certified as "Hazardous Material Certifier" and
had eight years of experience inspecting for fuel and oil leaks as well
as proper operation of vehicles or equipment. Complainant contends that
his responsibilities were more significant in so far as the vehicles
or equipment he inspected were received from the selectee's area and
were thus the final reviewing point on the chain. Complainant argues
generally that he had more education, training and experience in jobs
closely related to the position in question.
Assuming, without finding, that complainant is a "qualified individual
with a disability" within the meaning of the Rehabilitation Act and
applying the standards set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973); Reeves v. Sanderson Plumbing Products, Inc.,
U.S. , 2000 WL 743663 (June 12, 2000); and Prewitt v. United States
Postal Service, 662 F.2d 292, 310 (5th Cir. 1981), the Commission finds
that complainant established a prima facie of age and physical disability
discrimination and that the agency met its burden of articulating a
legitimate, nondiscriminatory reason for not selecting him, namely that
the selectee was a superior candidate. The Commission further finds
that complainant failed to prove that the agency's articulated reasons
for its actions were a pretext for discrimination. In reaching this
conclusion, we note that complainant sincerely believes his non-selection
was motivated by unlawful discrimination. However, he failed to present
evidence in support of his assertions, and the record does not support a
finding that the selectee, who was highly recommended by his supervisor
and was distinguished for having an excellent inspection record and for
showing initiative, was not as qualified for the position as complainant.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, Acting Director
Office of Federal Operations
July 28, 2000
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. The ADA regulations
set out at 29 C.F.R. Part 1630 apply to complaints of disability
discrimination. These regulations can be found on EEOC's website:
www.eeoc.gov.
2 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.