James F. Ray, Complainant,v.Spencer Abraham, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionJun 28, 2001
01983058 (E.E.O.C. Jun. 28, 2001)

01983058

06-28-2001

James F. Ray, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.


James F. Ray v. Department of Energy

01983058

June 28, 2001

.

James F. Ray,

Complainant,

v.

Spencer Abraham,

Secretary,

Department of Energy,

Agency.

Appeal No. 01983058

Agency Nos. 94-139-HQ-HR; 95-118-HQ-HR

Hearing Nos. 100-96-7959X; 100-96-7960

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 Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

Complainant alleges he was discriminated against on the basis of

disability when: (1) he was not selected for the position of General

Engineer, GS-801-13; and (2) he was not selected for the position of

Mechanical Engineer, GS-830-13.

For the following reasons, the Commission AFFIRMS the agency's final

decision.

The record reveals that complainant, an Electronics Engineer, GS-855-12,

at the Naval Surface Warfare Center (NSWC) in White Oak, Maryland, filed

a formal EEO complaint with the agency on August 31, 1994 and May 23,

1995, alleging that the agency had discriminated against him as referenced

above. The investigative files were consolidated and at the conclusion

of the investigation, complainant received a copy of the investigative

report and requested a hearing before an EEOC Administrative Judge (AJ).

Following a hearing, the AJ issued a decision finding no discrimination.

The AJ made the following factual findings. Complainant had worked

for the Department of the Navy since 1988. In March 1994, complainant

applied for a General Engineer, GS-801-13 position with the Department of

Energy's Electric and Hybrid Propulsion Division, advertised in Vacancy

Announcement 93-EE-351A. It was determined by the personnel office

that complainant did not show that he possessed one-year of specialized

experience directly related to the position's duties, including knowledge

and experience in assessing the viability of electric drive system

technologies with an emphasis on automotive propulsion. The personnel

office decided that only one applicant had the necessary specialized

experience. Accordingly, in June 1994 the selectee (C1) was selected.

In March 1994, complainant also applied for a Mechanical Engineer,

GS-830-13 position, which was advertised in Vacancy Announcement

93-EE-441/442A. The position was within the Energy Efficiency and

Renewable Energy office. In February 1995, complainant was informed

that he did not meet the one year of specialized experience that was

directly related to the advertised position's duties. The personnel

office referred nineteen applicants to the selecting official (S1).

S1 selected two applicants (C2 and C3) (no disabilities).

The AJ concluded, inter alia, that complainant failed to establish a

prima facie case of disability discrimination because complainant failed

to prove that the responsible management officials were aware of his

disability. Specifically, the AJ determined that the record established

that complainant did not inform the personnel office or the responsible

management officials about the nature of his disabilities. The only

information accessible to the responsible management officials included:

(1) complainant's SF-171 form which noted that he was �compensably

disabled, less than 30 percent<1>;� and (2) a form letter from the

Veteran's Administration noting that complainant �is in receipt of

disability compensation on account of a service-connected disability rated

at less than 30 percent.� In addition, complainant did not inform the

agency's personnel office or any of the responsible management officials

about the nature of his alleged disabilities. Moreover, the responsible

management officials all testified that they had no information regarding

complainant's alleged disability. Accordingly, the AJ determined that

complainant failed to prove, by a preponderance of the evidence, that

the agency was aware of his disability or perceived him as being an

individual with a disability. See Lester v. Department of Interior,

EEOC Appeal No. 01944102 (January 16, 1996) (holding that complainant

checking the box �Compensably Disabled, more than 30 percent� at the

bottom of his application form does not necessarily disprove testimony

from selecting officials that they had no knowledge that complainant was

disabled); See also, Lewis v. Department of the Treasury, EEOC Request

No. 05910902 (March 12, 1992).

The agency's final decision implemented the AJ's decision.

On appeal, complainant argues, in relevant part, that his disability

was also recorded in the Qualifications Analysis sheet which was part

of the Investigative Report. In addition, complainant

argues that since a key witness did not testify at the hearing, there

was no way of knowing whether she was aware of complainant's disability.

The agency requests that we affirm its final decision.

Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by

an AJ 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).

After a careful review of the record, the Commission finds that the

AJ's decision properly summarized the relevant facts and referenced the

appropriate regulations, policies, and laws. While complainant argues

that the Qualifications Analysis sheet contains information regarding his

disability, the record shows that the information on this form is similar

to that found on the SF-171, which simply answers yes to the following

question: �Does applicant meet the area of consideration requirement

or has he/she specified eligibility for appointment under a special

authority (e.g., veterans, persons with disabilities)?� We find that this

information alone, is insufficient to show that the agency had knowledge

of complainant's disability. Lastly, we find the lack of live testimony

from one witness insufficient to show that the AJ's findings were not

supported by substantial evidence, since numerous witnesses who made

independent determinations regarding complainant's qualifications were

in fact present at the hearing and testified that they had no knowledge

of his alleged disability. Assuming, arguendo, that complainant is

an individual with a disability, under the Rehabilitation Act, we find

substantial evidence in the record to support the AJ's conclusions that

complainant failed to prove that the agency knew of his disability.

Therefore, after a careful review of the record, including arguments

and evidence not specifically addressed in this decision, we AFFIRM the

agency's final decision.

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

June 28, 2001

__________________

Date

1 The options available included, �non-compensably disabled or Purple

Heart recipient, �compensably disabled, less than 30 percent,� spouse,

widow(er), mother of a deceased or disabled veteran,� or �compensably

disabled, 30 percent or more.�