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.