01975163
09-09-1999
Paul J. Colaner, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance & Accounting Service) Agency.
Paul J. Colaner, )
Appellant, )
) Appeal No. 01975163
v. ) Agency No. DFAS-CO-000A-96-014
) Hearing No. 220-97-5009X
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Finance & )
Accounting Service) )
Agency. )
)
DECISION
Appellant timely initiated an appeal from a final agency decision (FAD)
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (White), sex (male), and
age D.O.B: 5/30/34, in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Appellant alleged he was discriminated against when he was not selected
for the position of supervisory auditor, GS-511-13, in December 1995.
The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
Following an investigation, appellant requested a hearing before an
Equal Employment Opportunity Commission (EEOC) Administrative Judge
(AJ). Following a hearing, the AJ issued a Recommended Decision (RD),
finding no discrimination. The agency's FAD adopted the AJ's findings of
no discrimination. It is from this decision that appellant now appeals.
The record reveals that during the relevant time, appellant was employed
by the agency as a financial systems analyst, GS-12, at the Defense
Finance & Accounting Service (DFAS), Columbus, Ohio.
The AJ concluded that appellant established a prima facie case of race,
sex and age discrimination because a Black female employee, age 50,
who was not in appellant's protected classes, was selected for the
position. The AJ determined that the agency articulated legitimate
non-discriminatory reasons for not selecting appellant. The SO selected
the selectee because she was the best qualified candidate based on her
education and experience. Additionally, the selectee had worked in
the office where the position was located for approximately two years.
Furthermore, she had been detailed, and temporarily promoted to the
vacant position. Also, the AJ found that the selectee possessed
substantive Mechanization of Contract Administration Service (MOCAS)
knowledge, held previous auditor positions, and possessed significant
military audit experience.
The AJ concluded that appellant failed to establish that the agency's
articulated reasons were a pretext to mask unlawful discrimination.
A review of the record revealed that appellant did not possess extensive
auditor experience, and did not have any MOCAS experience. The AJ
found that such experience was a necessity because the primary function
of the position was to supervise and direct a group of auditors working
with the MOCAS program.
After a careful review of the entire record, including appellant's
contentions on appeal, and arguments and evidence not specifically
addressed in this decision, the Commission finds that the AJ's RD
summarized the relevant facts and referenced the appropriate regulations,
policies, and laws. We note that appellant failed to present evidence
that any of the agency's actions were motivated by discriminatory animus
towards appellant's race, sex, and/or age. Therefore, the Commission
discerns no basis to disturb the AJ's findings of no discrimination.
Accordingly, it is the decision of the Equal Employment Opportunity
Commission to AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
9/09/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations