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).