Peter Kukish, Appellant,v.Togo D. West, Secretary, Department of Veteran Affairs, Agency.

Equal Employment Opportunity CommissionSep 14, 1999
01972991 (E.E.O.C. Sep. 14, 1999)

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.