01993744
02-22-2002
Jacob J. Wright, Complainant, v. Donald E. Powell, Chairman, Federal Deposit Insurance Corporation, Agency.
Jacob J. Wright v. Federal Deposit Insurance Company
01993744
February 22, 2002
.
Jacob J. Wright,
Complainant,
v.
Donald E. Powell,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 01993744
Agency No. 97-41
Hearing No. 310-98-5270X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment 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.<1> The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
we affirm the agency's final decision.
The record reveals that complainant, a Senior Accountant at the agency's
Southwest Service Center in Dallas, Texas, filed a formal EEO complaint
on March 17, 1997, alleging that the agency had discriminated against
him on the bases of his sex (male), age (58 years), and disability
(impaired vision resulting from multiple sclerosis) when he was not
given special consideration for an excepted appointment under hiring
authority Schedule A. Specifically, complainant did not make the best
qualified list for two senior accounting positions and was not selected
for a term accounting position. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge. Following a hearing,
the Administrative Judge issued a decision finding no discrimination.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings
by an Administrative Judge will be upheld if supported by substantial
evidence in the record. Substantial evidence is
defined as �such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.� Universal Camera Corp. v. National
Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted).
A finding regarding whether or not discriminatory intent existed is a
factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293
(1982).
Turning initially to complainant's claims of age and sex discrimination
and assuming arguendo that complainant established a prima facie case on
both bases, we find that he failed to present any evidence to support
a finding that the agency's actions were motivated by either sex or
age discrimination. Turning our attention to complainant's claim of
disability discrimination and assuming arguendo that complainant is a
qualified individual with a disability, we agree with the Administrative
Judge's conclusion that complainant also failed to prove, by a
preponderance of the evidence, that the agency's actions were motivated
by disability discrimination. Specifically, we note that the gist of
complainant's claim concerning the selections is that the agency deprived
him of information concerning the Office of Personnel Management's
special hiring authorities. The Administrative Judge acknowledged that
complainant had encountered difficulty securing information relevant to
Schedule A hiring but found no evidence that the agency withheld such
information or delayed the transmittal of such information to complainant.
Moreover, it is clear that complainant's contention that the agency
denied its obligations under the Rehabilitation Act is baseless in light
of the agency's willingness to provide complainant with reasonable
accommodation for his vision impairment. In finding that the agency
was not unlawfully motivated, the Administrative Judge also noted that
the agency promoted complainant over time from a GS-11 to a GS-13 and
rehired him after a corporate-wide downsizing resulted in a five month
break in complainant's service.
After a careful review of the record, the Commission finds that the
Administrative Judge's findings of fact are supported by substantial
evidence and that her decision referenced the appropriate regulations,
policies, and laws. We concur that complainant failed to present evidence
that any of the agency's actions were motivated by discriminatory animus
toward his sex, age, or disability. Accordingly, we discern no basis
to disturb the Administrative Judge's finding of no discrimination,
and after considering all statements submitted on appeal, we affirm the
agency's final decision.
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
February 22, 2002
__________________
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.