01996107
12-21-1999
John A. Morales, Jr., Complainant, v. Alberto Aleman Zubieta, Administrator, Panama Canal Commission, Agency.
John A. Morales, Jr., )
Complainant, )
) Appeal No. 01996107
v. ) Agency No. PCC 356
) Hearing No. 150-98-8199X
Alberto Aleman Zubieta, )
Administrator, )
Panama Canal Commission, )
Agency. )
)
DECISION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning his equal employment opportunity (EEO) complaint of
unlawful employment discrimination on the basis of national origin
(United States) in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq.<1> Complainant alleges he
was discriminated against when: he was not selected for the position of
Machinist Leader. The appeal is accepted in accordance with EEOC Order
No. 960.001. For the following reasons, the Commission affirms the FAD.
The record reveals that complainant, a Machinist at the agency's
Pedro Miguel Locks location of the Panama Canal, filed a formal EEO
complaint with the agency on November 5, 1996, alleging that the agency
had discriminated against him as referenced above. 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 Recommended Decision (RD) finding
no discrimination. The FAD adopted the finding of the RD. Neither party
submitted a statement in support of or in response to the appeal.
The AJ concluded that complainant established a prima facie case of
national origin discrimination because the selectees were outside of
complainant's protected class.<2> The AJ then concluded that the agency
articulated legitimate, nondiscriminatory reasons for its selection,
namely, that the position of Machinist Leader requires, more than
seniority and technical expertise, certain personality and leadership
traits that the recommending and selecting officials found lacking
in complainant. The AJ noted that while reliance on such subjective
factors is likely to offer a convenient pretext for discrimination,
it is not discrimination per se. See Fodale v. Department of Health
and Human Services, EEOC Request No. 05960344 (October 16, 1998).
The AJ found that complainant failed to prove that the agency's
explanation for not selecting him was a pretext for discrimination.
In reaching this conclusion, she was persuaded by the testimony of
complainant's own witness, a former supervisor who had high praise
for complainant's craftsmanship but who corroborated the recommending
officials' testimony concerning complainant's lack of leadership skills.
Testimony from one recommending official and the selecting official
indicated that complainant often displayed a negative attitude at work;
complained frequently; lacked drive and discretion; and expressed his
dissatisfaction in ways that were disruptive and nonproductive.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
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 that discriminatory intent
did not exist 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 RD summarized the relevant facts and referenced the appropriate
regulations, policies, and laws.<3> It is undisputed that complainant
was an accomplished Machinist with over twenty years of experience
at the agency, known for his high standards and solid work ethic, but
the evidence does not support a finding that his qualifications were
plainly superior to those of the selectees or that his leadership skills
warranted his selection. See Shapiro v. Social Security Administration,
EEOC Request No. 05960403 (December 6, 1996). We thus conclude that
the AJ's finding that complainant's non-selection was not motivated
by discriminatory animus towards his national origin is supported by
substantial evidence in the record, and we discern no basis to disturb
her conclusion. Therefore, after a careful review of the record,
including arguments and evidence not specifically addressed in this
decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
December 21, 1999
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
Equal Employment Assistant 1 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.
2 All of the selectees were Panamanian.
3 We note that complainant is an American and a Panamanian citizen, who
was born and raised in the Canal zone. The inclusion of an individual's
citizenship as part and parcel of "national origin" plainly falls
within the broad sweep of 29 C.F.R. � 1606.1 See Benz v. Department
of the Navy, EEOC Appeal No. 01944188 (November 10, 1994), request to
reconsider denied, EEOC Request No. 05950145 (March 1, 1996).