John L. Cronin, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency) Agency.

Equal Employment Opportunity CommissionOct 8, 1999
01983762 (E.E.O.C. Oct. 8, 1999)

01983762

10-08-1999

John L. Cronin, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency) Agency.


John L. Cronin, )

Appellant, )

) Appeal No. 01983762

v. ) Agency No. XQ-96-017

) Hearing No. 280-97-4033X

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Logistics Agency) )

Agency. )

)

DECISION

Appellant timely initiated an appeal of a final agency decision (FAD)

concerning his Equal Employment Opportunity (EEO) 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.

Appellant alleges that he was discriminated against on the basis of age

(DOB: 8/31/38) when he was not selected for promotion to the position

of Contract Specialist. The appeal is accepted in accordance with EEOC

Order No. 960.001. For the following reasons, the agency's decision

is AFFIRMED.

The record reveals that appellant, a Termination Contract Specialist

at the agency's Defense Contract Management Command in St. Louis,

Missouri, filed a formal EEO complaint with the agency on June 5, 1996,

alleging discrimination as referenced above. At the conclusion of the

investigation, appellant requested a hearing before an EEOC Administrative

Judge (AJ). Following a hearing, the AJ issued a Recommended Decision

(RD) finding no discrimination.

The AJ concluded that appellant established a prima facie case

of age discrimination because: he was fifty-eight years old at the

time of the selection; he applied for the position and was considered

qualified; he was not selected; and the selectee, although a member of

appellant's protected group, was significantly younger (fourteen years)

than appellant. The AJ then concluded that the agency articulated a

legitimate, nondiscriminatory reason for its selection, namely, that

the selectee had superior qualifications under the criteria established

by the selection panel. The AJ found that appellant did not present

one scintilla of evidence that his non-selection was motivated by

discriminatory animus towards his age.

The agency's FAD adopted the AJ's RD. Appellant did not submit a

statement in support of his appeal. The agency requests that we affirm

its final decision.

In an ADEA case, the ultimate burden remains on appellant to demonstrate,

by a preponderance of the evidence, that age was a determinative factor in

the sense that, "but for" his age, he would not have been subjected to the

action at issue. Loeb v. Textron, 600 F.2d 1003 (1st Cir. 1979); Brown

v. Department of the Navy, EEOC Request No. 05970009 (April 20, 1998).

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

appellant established a prima facie case of age discrimination,<1> he

failed to establish that �but for� his age, he would have been selected.

Accordingly, we discern no basis to disturb the AJ's findings of no

discrimination which were based on a detailed assessment of the record

and the credibility of the witnesses. In general, the Commission will

not disturb the credibility determination of an AJ. Esquer v. United

States Postal Service, EEOC Request No. 05960096 (September 6, 1996);

Willis v. Department of the Treasury, EEOC Request No. 05900589 (July

26, 1990). Therefore, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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 the decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive the decision. To ensure that your civil action is

considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive the decision or to consult an attorney

concerning the applicable time period in the jurisdiction in which your

action would be filed. 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 (Z1092)

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:

October 8, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1 See Terrell v. Department of Housing

and Urban Development, EEOC Appeal No. 01961030 (October 25,

1996), request to reconsider denied, EEOC Request No. 05970336

(November 20, 1997). We note, however, that this is only one

method of establishing a prima facie case of age discrimination,

and that a complainant is not precluded from such a showing merely

because the comparative employee(s) is not considerably younger.

See Enforcement Guidance on O'Connor v. Consolidated Coin Caterers

Corp., EEOC Notice No. 915.002 (September 18, 1996); Schultz

v. Department of Veterans Affairs EEOC Request No. 05980483

(January 19, 1999).