0120090651
06-22-2012
Lawrence Gluch, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Lawrence Gluch,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090651
Hearing No. 531-2008-00199X
Agency No. 2004-0512-2007103222
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's October 27, 2008 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Firefighter at the Agency's Fire Service, Perry Point, Maryland, Veterans Affairs Medical Center.
On August 14, 2007, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of age (49) when:
In May 2007, he was not selected for the position of Lead Firefighter, GS-0081-07, advertised under Vacancy Announcement Number 07-075 (Maryland Health Care System).
Following the investigation into his complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The hearing was held on July 29, 2008. On August 6, 2008, the AJ issued a bench decision concluding no discrimination had been established. The AJ found that Complainant raised a prima facie inference of age discrimination because he was qualified for the positions and the selectees were significantly younger. However, the AJ further found that this initial inference was successfully rebutted by management witnesses who articulated legitimate, nondiscriminatory reasons for not selecting Complainant. Specifically, the AJ noted testimony that the two selectees were chosen because they were the best qualified based on their work experience and because they had done well during the interview. The AJ further found that Complainant did not prove, by a preponderance of the evidence, that these articulated reasons were a pretext to mask unlawful discrimination. While the AJ acknowledged that Complainant had a lengthy and commendable work history, he found that Complainant did not establish that his experience, certifications and training were superior to those of the two selectees.
The Agency issued its final order adopting the AJ's decision. The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
The record shows that seven applicants, including Complainant, applied for the subject position and were referred to the selecting official for consideration. A selection panel of four management officials was convened, headed by the Fire Chief and Safety Manager, who was the recommending official (RO). The panel reviewed the seven candidates' application materials and conducted interviews. They then rated and ranked each of the candidates based on their applications and interviews. According to the RO, the two eventual selectees were ranked first and second with overall scores of 141 and 149, respectively. Complainant was ranked fifth with an overall score of 127. The record also contains a documentary evidence of the scoring. Based on the rating and ranking, RO stated that the panel recommended the two eventual selectees because they judged them to be the best qualified. RO stated that the selecting official1 accepted the recommendations without further deliberation, and the selectees were chosen for the subject positions.
RO testified that the one of the two selectees (S1, age 27) had extensive experience as a volunteer firefighter and had completed the University of Maryland, Maryland Fire & Rescue Institute, the National Fire Academy, the Maryland Institute for Emergency Medical Services Systems, and Hazardous Materials Technician training through the Environmental Protection Agency. RO stated that S1 has five certifications though various fire service certification systems. RO stated that S1, "had shown initiative to me in the past. He has done things around the station. He's recommended changes because of his education and experience. He has served in the position of lieutenant in the volunteer department, which is equivalent to doing the job here at Perry Point. And he, again, has experience in the volunteers fighting fire, and as I said, it's been observed also with his certifications and his aggressiveness to pursue his education to continue and not stop just because you've reached a certain level."
RO testified that the other selectee (S2, age 29) had experience as a Structural Firefighter with a water company. RO stated that S2 also had experience as a Lead Firefighter during his tenure with the Air Force. RO stated at the same time, S2 kept up with his certifications and education.
RO stated that he did not recommend Complainant for the subject position because he was the fifth lowest scored applicant "in the interview, and I didn't have - - or have not observed [Complainant] to be a self-starter, have not observed [Complainant] to show the initiative that I would expect of a leader or someone in a lead position. And I did not select [Complainant] because his education and training is dated." RO noted Complainant's last training courses were in April 1997 and in 1985, and stated that Complainant did not have the firefighting certifications that S1 and S2 earned. RO testified that Complainant received zero point for the certification criteria while S1 and S2 each received a score of 5. RO stated that in regard to training criteria, S1 and S2 each received a score of 5, and Complainant received a score of 3.
With respect to Complainant's allegation that S1 was the son of one of the panelists and the nephew of another panelist and S2 was the brother-in-law of one of the panelists, RO stated that he excused the two named panelists "from their [relatives] interviews. They would not participate . . . to avoid any perception of nepotism or any of that kind of stuff." RO also stated that the named panelists "couldn't discuss their relatives because they didn't participate in the interviews." RO further stated that he substituted in two named management officials.
The AJ noted that one of the panelists (P1), a supervisory Firefighter Assistant Chief, stated that he thought S1 did very well during his interview and "he answered a lot of the questions that the chief had prepared that I had not seen before. That was my interview with what we call [S1]. He answered a lot of the questions. He knew a lot of the material." P1 stated that while S1 is an aggressive firefighter, he "really tries to stay on top of his game. He's always looking for ways to make things better."
P1 stated that S2 "impressed me from the standpoint that he was probably the only on that I could remember that answered all the questions correctly...and after having conversations with {S2] and talking to him during the interview process, he impressed me quite a bit with his knowledge of the fire service." P1 further stated that S2 "was always ready to go any time we had a call right up, you know, he was always chomping to the bit to have something to do. He was not the kind of guy that would want to sit around and just watch TV. He was always. . . tinkering with something."
P1 stated that he does not recall Complainant sharing suggestions with him "to try and change things or fix things if . . . there was something wrong drastically...but as far as trying to change tactics or trying to improve the system itself, I didn't get a lot from [Complainant]." P1 stated that whenever he asked Complainant to do something, "he would do it, but he was not, as I would like to say, a self-starter. He didn't volunteer to go out and do things on his own or to try and get things going without being told to do so."
Based on the testimony received at the hearing, as well as the evidence gathered during the investigation, the AJ concluded that management articulated legitimate, nondiscriminatory reasons for the selection decisions, which Complainant failed to prove were a pretext for discrimination.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, which were not proven to be pretextual, is abundantly supported by the record, as referenced above. Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
June 22, 2012
__________________
Date
1 The selecting official, the former Chief, Facilities and Engineering Service, had retired from Agency employment by the time the hearing was held and did not testify.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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