01972991
09-14-1999
Peter Kukish, Appellant, v. Togo D. West, Secretary, Department of Veteran Affairs, Agency.
Peter Kukish v. Department of Veteran Affairs
01972991
September 14, 1999
Peter Kukish, )
Appellant, )
)
v. ) Appeal No. 01972991
)
Togo D. West, ) Agency Nos. 95-1908
Secretary, )
Department of Veteran Affairs, ) Hearing No. 110-96-8137X
Agency. )
_______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the Department of Veteran Affairs (agency) concerning his 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.;
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 633a et seq. Appellant alleges discrimination based upon his
sex (male), and age (50 years old<1>), when he was not selected for the
position of Supervisory Blind Rehabilitation Specialist on April 13, 1995.
The appeal is accepted in accordance with EEOC Order No. 960.001.
On or about June 30, 1995, appellant filed a formal complaint alleging
discrimination as referenced above. Appellant's complaint was accepted
for processing. Following an investigation, appellant requested a
hearing before an EEOC Administrative Judge (AJ). A hearing took place
on October 25, 1996. Thereafter, the AJ issued his recommended decision
finding no discrimination. On January 31, 1997, the agency issued
its final decision and adopted the AJ's finding of no discrimination.
It is this agency decision which the appellant now appeals.
The record reveals that appellant commenced employment with the agency as
a manual arts therapist in 1971. In 1974 he became a blind rehabilitation
specialist. Thereafter, in 1983, appellant became a coordinator of
blind rehabilitation services at the West Haven, Connecticut, Veterans
Medical Center, a position he still holds. He has a Bachelor's Degree
in Industrial Education.
In 1985, C1 (female, 35), commenced employment with the agency as a
social worker. She was assigned part-time duties as a Visual Impairment
Services Team Coordinator (VIST Coordinator) and held that position
as a collateral duty until her transfer to the Augusta facility as a
full-time VIST Coordinator in 1988. At that time she was assigned to
work for the Chief of Staff. She became known to the director and was
appointed to various committees and other types of assignments such as
the Federal Women's Program, Quality Management Coordinator, Mentoring
Pilot Program, EEO Advisory Committee, and Special Inferences Programs.
In 1991, the agency's Central Office requested that the Augusta facility
prepare a proposal for creating a blind rehabilitation program at the
Augusta facility. C1 agreed to take the task of preparing the proposal.
C1 spent most of the year from the date of her appointment to the
project, in 1991, until the first draft was submitted, in July, 1992,
working on the proposal. C1 spoke with various service chiefs and blind
rehabilitation specialists throughout the country. C1 continued to submit
updates to her proposal in 1993 and in 1994. The blind rehabilitation
program was finally approved in December, 1994. Thereafter, C1 was
appointed to set up the program and she began working on a position
description for the chief's position as well as other duties.
The vacancy of the chief's position was announced on February 21, 1995.
Appellant, C1 and four other applicants (C2, C3, C4 and C5) were found
qualified for the position.<2> The selecting official (SO) appointed a
ranking panel which consisted of three individuals, the Chief of Voluntary
Service (R1) (female, over 40 years old), the Chief of Social Work (R2)
(female, over 40), and the selecting official's administrative assistant
(R3) (male, over 40). The panel interviewed C1 in person and all other
qualified applicants over the telephone in April, 1995.<3> R3 prepared
a memorandum from the interview notes and ranked the applicants by
recommending C1 and then listing the following order of preference as C2,
appellant, C3, C4 and C5. The selectee chose C1 for the position.
The AJ found that appellant clearly established a prima facie case
of age and sex discrimination. Appellant, applied for the position,
was qualified, but was not selected. Moreover, the AJ noted that a
substantially younger female with less experience was selected.
However, the AJ also found that appellant failed to discredit the agency's
articulated legitimate, non-discriminatory reasons for its employment
decision, or otherwise meet his burden of proving discriminatory animus.
Specifically, the ranking panel testified that while C2 and appellant
had more supervisory experience than C1, particularly in the area of
blind rehabilitation programs, they, nevertheless, found C1 to far
surpass the other candidates in leadership and motivational skills.
The record overwhelmingly indicated that management was more interested
in someone they felt could get the project up and going and manage the
project as opposed to individuals who actually had experience in blind
rehabilitation work.
Appellant argued that C1 was preselected. However, the AJ noted that
even if C2 was preselected or as he suspected, that there was some
command influence on the part of the director, the record does not
indicate that such influence was motivated by sex or age bias. The AJ
noted that the responsible management officials are men in their fifties
and there was no evidence of improper pressure on the ranking panel.
In addition, the undisputed record indicated that the second choice
for the position was not appellant. Thus, even absent discrimination
(were discrimination found) appellant would not have been selected.
Lastly, the AJ found C1's application impressive. According to the AJ,
the record showed that management had high regard for C1 and that her
being an internal candidate at the Augusta facility played a role and
probably gave her an advantage over the other applicants. However,
the AJ found the advantage to be based on the fact that appellant
was employed at the Augusta facility, had worked in the front office,
and had gained the confidence of the chief of staff and the director,
whereas the other applicants did not have that chance.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission finds
that, in all material respects, the AJ accurately set forth the relevant
facts and properly analyzed the case using the appropriate regulations,
policies, and laws.
On appeal, appellant contends that the investigative process was
flawed. Specifically, appellant states that "there was little regard
for procedure, documentation or timely notification of delays, changes
or decisions." However, the only example presented by appellant was the
six-week delay in receiving a response to a letter of concern that he sent
to the EEO office regarding the timeliness of the processing of his case.
We have thoroughly reviewed the entire case file and find the record
quite thorough and complete. We note that prior to the hearing, several
witnesses were deposed, including appellant, all responsible management
officials, seven witnesses identified by appellant, and several agency
witnesses. In addition, all relevant documentary evidence appeared
in the file. At the hearing, five witnesses testified for appellant
and four witnesses testified for the agency. Moreover, appellant has
failed to specify what is missing from the file and, more importantly,
how such information would have altered the final determination of no
discrimination. Lastly, the appellant does not specify how any alleged
delay in the processing of his complaint adversely affected the outcome
in this matter. Accordingly, we discern no basis upon which to disturb
the AJ's finding of no discrimination and hereby AFFIRM the agency's
final decision.
STATEMENT OF RIGHTS -- ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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 this 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 this 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 this 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:
9/14/99
_______________ _________________________________
DATE Carlton M. Hadden, Acting Director
1All references to age are at the time of the non-selection.
2C2, C3, C4 and C4 were all men over 40 years old. There is no dispute
that all six applicants met the minimum qualifications for the position.
3Appellant does not claim that the agency's failure to interview him in
person was discriminatory.