01A22749_r
09-04-2002
Mackie L. Maynor v. Department of Veterans Affairs
01A22749
September 4, 2002
.
Mackie L. Maynor,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A22749
Agency No. 2003-1213
Hearing No. 310-A1-5014X
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 Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that complainant filed a formal EEO complaint, dated
November 24, 1999, claiming that the agency discriminated against him in
reprisal for prior protected activity when on August 12, 1999, he was
not selected for the position of Medical Clerk at the agency's North
Texas Health Care System, in Dallas, Texas, announcement number 99-A6-112.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision finding no
discrimination.
The AJ determined that complainant did not establish a prima facie
case of discrimination on the basis of reprisal. Specifically, the AJ
found that although complainant participated in EEO activity in 1995,
there was no evidence that established that either selecting official
was aware of complainant's activity.
The AJ also found that the agency articulated a legitimate,
non-discriminatory reason for not selecting complainant for the Medical
Clerk position. The AJ found that the selectee was chosen because
of her extensive computer experience and fifteen years of conducting
administrative and organizational functions. When the selectee declined
the position, it was then offered to an individual who had previously
performed the tasks of the job. Consequently, the AJ found that
complainant did not establish discrimination based on reprisal.
The agency's final action implemented the AJ's decision. Complainant
makes no new persuasive contentions on appeal.
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.
After a careful review of the record, the Commission finds that the
AJ's findings of fact are supported by substantial evidence in the
record and that the AJ's decision properly summarized the relevant
facts and referenced the appropriate regulations, policies, and laws.
We agree that the complainant failed to establish a prima facie case of
discrimination based on reprisal. Complainant did engage in prior EEO
activity in 1995; however, the record does not show that the selecting
officials were aware of his activity. Moreover, complainant has not
established a connection between the 1995 EEO activity and the August
1999 non-selection. Assuming arguendo that complainant had established a
prima facie case, we agree that the agency has articulated a legitimate,
non-discriminatory reason for choosing the selectee, namely that he was
the best individual for the job. While complainant was ranked as a
"best qualified", he has less computer experience than the selectee,
and computer skills were an important aspect of the position. During the
hearing, complainant attempted to establish through his witnesses that he
was a good employee. However, complainant did not show that the selecting
officials were aware of his prior EEO activity; that he was clearly the
best qualified applicant for the Medical Clerk position; or that the
agency's reason for his non-selection was pretext for discrimination.
Because complainant has failed to present evidence that any of the
agency's actions were in retaliation for his prior EEO activity, we
discern no basis to disturb the AJ's decision.
Accordingly, after a careful review of the record, including arguments
and evidence not specifically addressed in this decision, we AFFIRM the
agency's final order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
September 4, 2002
__________________
Date