Garyv.Steward, Complainant, v. William S. Cohen, Secretary, (Defense Logistics Agency), Department of Defense, Agency.

Equal Employment Opportunity CommissionJul 28, 2000
01a04249 (E.E.O.C. Jul. 28, 2000)

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.