Kerry J. Koch, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency) Agency.

Equal Employment Opportunity CommissionNov 30, 2000
01a03105 (E.E.O.C. Nov. 30, 2000)

01a03105

11-30-2000

Kerry J. Koch, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency) Agency.


Kerry J. Koch v. Department of Defense

01A03105

November 30, 2000

.

Kerry J. Koch,

Complainant,

v.

William S. Cohen,

Secretary,

Department of Defense,

(Defense Logistics Agency)

Agency.

Appeal No. 01A03105

Agency No. DM97121

Hearing No. 170-99-8048X

DECISION

Complainant timely initiated an appeal from the agency's final

order concerning his equal employment opportunity (EEO) complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq. <1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

Complainant alleges that the agency discriminated against him on the

basis of disability when the agency non-selected him for the position

of Transportation Assistant (GS-2102-07) in April 1997.

For the following reasons, the Commission AFFIRMS the agency's final

order. The record reveals that complainant filed a formal EEO complaint

with the agency on July 16, 1997, alleging that the agency discriminated

against him because of his chemical dependency/alcoholism.

The agency initiated an investigation. At the conclusion of the

investigation, complainant was provided a copy of the investigative

report and requested a hearing before an EEOC Administrative Judge (AJ).

The AJ issued a decision without a hearing, finding that complainant

failed to establish discrimination. The agency concurred with the AJ's

finding of no discrimination and issued a final order fully implementing

the AJ's decision. From this final order, complainant now appeals.

BACKGROUND

The record reveals that complainant, a Packer Leader, at the agency's

Defense Depot Susquehanna in New Cumberland, Pennsylvania, voluntarily

received in-patient treatment for chemical dependency/alcoholism

for approximately twenty-five days during December 1993. In 1994,

complainant's position at the agency was declared �excess� due to the

agency's downsizing.

In an effort to secure another position at the agency, complainant applied

for the position of Transportation Assistant, GS-2102-07. The Chief

of the Hazardous Operations Branch (CHO) was the selecting official.

CHO interviewed three candidates for the position, including complainant.

When CHO selected another candidate for the position, complainant filed

the instant complainant. The agency argues that the selectee had superior

qualifications for the position. According to CHO, the selectee had vast

knowledge and direct vendor delivery experience. CHO further indicated

that she was personally familiar with the high quality of the selectee's

work. CHO points out that she did not know that complainant was disabled

or that he received treatment for chemical dependency/alcoholism.

FINDINGS AND ANALYSIS

EEOC Regulation 29 C.F.R. � 1614.109(g) authorizes AJs to issue decisions

without a hearing where the material facts are not in genuine dispute

and there is no genuine issue as to credibility. In the case before

us, we find that the AJ was correct in concluding that there were no

genuine dispute of the material facts and there was no genuine issue as

to credibility.

We assume for the purpose of this analysis that complainant is a qualified

individual with a disability. We also note that our review of the AJ's

determination is de novo. See Equal Employment Management Directive for

29 C.F.R. Part 1614 (E EO-MD-110), 9 -16 (November 9, 1999). Since the

instant complaint involves an allegation of disparate treatment and

since the agency articulates a legitimate nondiscriminatory reason for

not selecting complainant, it is complainant's burden to demonstrate by

a preponderance of the evidence that the agency's non-selection was based

on prohibited considerations of discrimination, that is, its articulated

reason for its action was not its true reason but a sham or pretext

for discrimination. Texas Department Of Community Affairs v. Burdine,

450 U.S. 248, 253 (1981); St. Mary's Honor Center v. Hicks, 509 U.S 502

(1993).

In a non-selection case, pretext may be demonstrated by a showing that

complainant's qualifications are observably superior to those of the

selectee. Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981); Williams

v. Department of Education, EEOC Request No. 05970561 (August 6, 1998).

Having considered the evidence of record, we find that complainant has

not established pretext. Specifically, we note that complainant has

not offered any evidence that his qualifications for the position were

"observably superior" to those of the selectee.

Therefore, after a careful review of the record, including complainant's

contentions on appeal, the agency's response, and arguments and evidence

not specifically addressed in this decision, we AFFIRM the agency's

final order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). 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 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 (S0900)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 30, 2000

Date

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.