Joseph Spotter, Complainant,v.James Lee Witt, Director, Federal Emergency Management Agency, Agency.

Equal Employment Opportunity CommissionMar 30, 2000
05a00016 (E.E.O.C. Mar. 30, 2000)

05a00016

03-30-2000

Joseph Spotter, Complainant, v. James Lee Witt, Director, Federal Emergency Management Agency, Agency.


Joseph Spotter v. Federal Emergency Management Agency

05A00016

March 30, 2000

Joseph Spotter, )

Complainant, )

)

v. ) Request No. 05A00016

) Appeal No. 01981271

James Lee Witt, ) Agency No. 95-004

Director, )

Federal Emergency Management Agency, )

Agency. )

)

DENIAL OF REQUEST FOR RECONSIDERATION

On October 2, 1999, the complainant timely initiated a request to the

Equal Employment Opportunity Commission to reconsider the decision

in Joseph Spotter v. Federal Emergency Management Agency, EEOC Appeal

No. 01981271 (September 15, 1999 ).<1> EEOC regulations provide that

the Commission may, in its discretion, reconsider any previous decision.

64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

referred to as EEOC Regulation 29 C.F.R. �1614.405(b)). The party

requesting reconsideration must submit written argument or evidence

which tends to establish one or more of the following two criteria:

the appellate decision involved a clearly erroneous interpretation of

material fact or law; or the decision will have a substantial impact on

the policies, practices or operations of the agency. For the reasons set

forth below, the Commission finds that the complainant's request fails

to meet the criteria of 29 C.F.R. �1614.405(b), and it is the decision

of the Commission to deny the request.

The complainant first sought EEO counseling on October 12, 1994. He then

filed a formal complaint wherein he alleged that the agency discriminated

against him based on his age (DOB: 7/27/48) when it selected a younger

employee (DOB: 6/02/61) (hereinafter referred to as the selectee)

for the position of Information Systems Coordinator, GS-301-12/13,

on October 26, 1992, and the position of Information Systems Manager,

GS-301-12/13, on October 6, 1994. After an agency investigation, the

complainant requested a hearing. The complainant subsequently withdrew

his request for a hearing and the agency issued a final agency decision.

The final agency decision found that the complainant had not timely sought

counseling regarding the 1992 non-selection and that the matter should not

be deemed timely under a continuing violation theory for several reasons,

including that the non-selection had the degree of permanence that should

have trigger the complainant's awareness and duty to assert his rights,

and because the complainant had as much reason to suspect discrimination

in 1992 and he did in 1994. However, the decision went on to find

that although the complainant had established a prima facie case of

discrimination based on age regarding both non-selections, the agency

had met its burden of articulating legitimate, nondiscriminatory reasons

for the complainant's non-selections in 1992 and 1994. Specifically, in

1992, the selectee had several years of work experience and training in

computer and information resources-related activities, including computer

support for the agency's Disaster Assistance Programs in Region II.

In contrast, the complainant's work experience and accomplishments

focused primarily on electronics and telecommunications. In 1994, a

three-person-panel, including the supervisor for the position at issue,

concluded that the selectee was better qualified than the complainant and

a third best-qualified applicant. As Information Systems Coordinator,

the selectee had gained two years of team leader experience and some

procurement experience that the complainant lacked. The difference

in experience was reflected in the applicants' answers to interview

questions. The selectee also indicated greater flexibility in meeting

the travel requirements of the position than did the complainant.

The agency decision further found that the complainant had failed to

prove that age was a determinative factor in either of the non-selections.

On appeal, the complainant contended that he had made a valid continuing

violation claim and that the record lacked critical evidence regarding

the 1992 non-selection because the merit promotion records were destroyed

several months after the complainant filed his complaint. The complainant

asked the Commission to find discrimination regarding both non-selections

based on his allegedly superior qualifications and the agency's subjective

evaluation of the interview responses. In addition, as to the 1992

non-selection, the complainant requested that the Commission draw an

adverse inference and find discrimination based on the agency's failure

to maintain relevant records after the complaint was filed.

The appellate decision affirmed the final agency decision. As initially

issued, the decision purported to adopt the Administrative Judge's

recommended findings and conclusions. However, on October 12, 1999,

the Commission's Office of Federal Operations (OFO) issued an ERRATA

letter to correct the reference to the Administrative Judge's recommended

findings and conclusion. OFO issued a corrected version of the appellate

decision which explained that the Commission affirmed the agency's final

decision because the preponderance of the evidence of record did not

establish that discrimination occurred.

Seeking reconsideration, the complainant submits documentation which

demonstrates that no hearing took place. The complainant also contends

that he was forced to appeal the agency's final decision without having

the benefit of the hearing he was supposed to have had.

After a review of the request for reconsideration, the previous decision,

and the entire record, the Commission finds that the complainant's

request fails to meet the criteria of 29 C.F.R. �1614.405(b), and it is

the decision of the Commission to deny the request. The complainant's

attorney acknowledged in a statement filed in support of the complainant's

appeal that the complainant had became frustrated with the hearing process

and requested a final agency decision. Once the complainant requested

a final agency decision, the Administrative Judge properly remanded the

complaint to the agency for decision without a hearing.

The Commission also finds that the appellate decision correctly concluded

that the preponderance of the evidence of record did not establish that

discrimination occurred in 1994. Thus, the complainant failed to meet

his burden of proving that the age was a determinative factor in either

non-selection. In addition, the Commission agrees with the agency that

the complainant failed to state a continuing violation claim regarding

the 1992 non-selection. The Commission finds no indication in the

record that the agency's failure to maintain the 1992 merit promotion

file would alter the outcome of the 1992 claim by demonstrating that

the untimely raised claim should be deemed to have been timely raised.

Accordingly, the decision in EEOC Appeal No. 01981271 (September 15, 1999,

as corrected and reissued October 12, 1999), remains the Commission's

final decision. There is no further right of administrative appeal from

a decision of the Commission on this request for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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:

March 30, 2000

_______________ ______________________________

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 of mailing. I certify that

the decision was mailed to complainant and the agency on:

DATE Equal Employment Assistant

1On 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 request. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.