0120073842
03-04-2009
James F. Ray, Complainant, v. Otto Wolf, Acting Secretary, Department of Commerce, Agency.
James F. Ray,
Complainant,
v.
Otto Wolf,
Acting Secretary,
Department of Commerce,
Agency.
Appeal No. 0120073842
Agency No. 06-54-00052
Hearing No. 531-2006-00238X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 6, 2007, final order concerning his equal
employment opportunity (EEO) complaint alleging 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.,and
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 bases of disability (Blind in left eye) and age (52)
when:
1. He was not selected for the position of Physical Scientist,
ZP-04; and
2. Retaliated against him when: it cancelled the vacancy
announcement.
The agency explained that seven applicants applied for the position.
The applicants each responded to a series of on-line questions for
the vacancy under a hiring program called Quickhire. Quickhire
automatically scored and ranked the applicants by their responses to
the on-line questions. A Human Resource Specialist (HRS) reviewed the
applicants' responses in order to make sure that the responses were
supported by their resumes. Several of complainant's responses were
changed as the HRS did not believe that the responses were supported by
his resume. Complainant received zero points for the answers that were
changed. Complainant's responses were the only applicant's responses that
were changed. Based on her review of complainant's materials, the HRS
also did not believe that complainant had the specialized experience for
the position that was listed on the vacancy announcement. As a result,
complainant was not placed on the Merit Promotion Certificate. The HRS
had no knowledge of complainant's age or the specifics of his disability.
Complainant learned in December 2005, that he had not been referred to
the Selecting Official.
On March 2, 2006, the agency indicated that the vacancy would not be
filled due to a lack of funding for the position. No one was placed in
the position.
The Administrative Judge (AJ) issued a summary judgment decision finding
no discrimination. The AJ found that complainant was not aggrieved and
failed to state a claim because no selection was made when the vacancy
was cancelled. Moreover, the AJ found that complainant had failed to
provide any evidence that showed that discriminatory animus was involved
by the review of his application responses.
On appeal, complainant contends that the AJ erroneously issued a summary
judgment decision.
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 order
finding no discrimination. Notwithstanding this finding, for the sake
of analysis only, the Commission finds that even if we assume arguendo
that complainant established a prima facie case of discrimination on
the bases of age, disability, and retaliation, the agency articulated
legitimate nondiscriminatory reasons for its actions. Specifically,
the agency indicated that during a comparison of the applicants' on-line
responses with their resumes, several irregularities were noted in
complainant's responses by a Human Resource Specialist. The answers
to these questions were changed by the Human Resource Specialist which
caused complainant not to be placed on the Merit Promotion Certificate.
The record reveals that the HRS was not aware of complainant's age
and/or disability at the time of the review. We find that complainant
has provided no evidence that demonstrates that the agency's articulated
nondiscriminatory reasons were pretext for discrimination. In fact, the
record shows that all seven applicants' responses were reviewed.
Further, the record does not support complainant's contention that he was
retaliated against when the agency cancelled the vacancy announcement.
The record shows that the vacancy was cancelled and no one was placed
in the position because of a lack of funding for the position. In an
attempt to show pretext, complainant contends that there was funding
available for the position because the agency hired for other positions.
We find this argument to be speculation on complainant's part. We find
that complainant has provided no evidence which shows that the agency's
business decision was in any way related to him or the filing of his
EEO complaint. We find that other than complainant's own conclusory
assertions, he has provided no evidence that he was retaliated against
or that his age, and/or disability were considered with regard to the
agency's actions.
Accordingly, we find the Administrative Judge's issuance of a decision
without a hearing was appropriate and a preponderance of the record
evidence does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
03/04/09
__________________
Date
4
0120073842
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036