01A12734
07-12-2002
Prithvi C. Lall, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Prithvi C. Lall v. Department of the Navy
01A12734
July 12, 2002
.
Prithvi C. Lall,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A12734
Agency No. DON-98-6660-003
Hearing No. 160-99-8388X
DECISION
The complainant timely initiated this 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.,
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. In his complaint, the complainant alleged that the agency
had discriminated against him on the bases of his race (East Indian),
national origin (Indian), color (Brown), and age (sixty-six years old
at the time of the agency action at issue), and retaliated against him
because of his prior EEO activity, when, in October, 1997, it failed to
forward his Defense Leadership and Management Program (DLAMP) application
for selection consideration.
The record reveals that at all times relevant to the agency action
at issue, the complainant was employed as a patent attorney at the
agency's Naval Undersea Warfare Center Division in Newport, Rhode Island.
In September, 1997, the complainant submitted his application to DLAMP
to the agency. Three other employees, not of the complainant's race,
national origin, or color, also submitted DLAPM applications.<1> In
October 1997, the agency informed all four applicants that it had decided
to not forward any of the DLAMP applications at that time. In an effort
to solicit more applications, the agency again publicized the DLAMP
program to its employees, and, in early 1998, after not receiving any
additional applications, forwarded all four of the previously submitted
DLAMP applications, including the complainant's, to the Department of
Defense (the sponsor of the DLAMP program) for consideration.
Complainant filed his formal complaint of discrimination, as described
above, in December, 1997. At the conclusion of the agency's investigation
into his complaint, the complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge
(AJ). The agency subsequently filed a motion for entry of findings and
conclusions without a hearing, arguing that there existed no genuine
issues of material fact and that the agency was entitled to judgment as
a matter of law. The complainant filed a memorandum in opposition to
the agency's motion, as well as a cross-motion for summary judgment,
and the agency filed a reply to the complainant's filing. The AJ
granted the agency's motion, and issued a decision without a hearing,
finding no discrimination.
In his decision, the AJ first found that there existed no genuine issue as
to any material facts, as the only challenge presented by the complainant
to the agency's argument in support of its decision was to simply claim
that the agency's reason was not true. The agency provided testimony
from persons involved in the DLAMP application process which showed
that the reason the applications were not submitted in October, 1997
was because of the low turnout rate, in comparison to the approximately
3,000 employees in the division, and their desire to have the DLAMP
applicants more representative, professionally, of the approximately 2,000
scientists and engineers within the division's workforce. The AJ noted
that the complainant's only challenge to the agency's evidence in support
of its explanation for not forwarding the applications was to assert
that the real reason was discrimination and retaliation based upon the
aforementioned categories, with no evidence in support of that assertion.
The AJ found that this proffer was insufficient to defeat the agency's
summary judgment motion.
Turning to the substance of the complaint, the AJ concluded that the
complainant failed to establish a prima facie case of discrimination.
Specifically, the AJ found that the complainant failed to demonstrate
that similarly situated employees not in complainant's protected classes
were treated differently under similar circumstances when the agency
failed to forward any DLAMP applications in October, 1997. The AJ
also found that there was no evidence which linked the complainant's
prior EEO activity to the decision to not forward the applications,
as the official who made the decision to not forward the applications
stated he was unaware of the complainant's prior EEO activity, and the
complainant failed to present any evidence to rebut this statement.
The AJ further found that the complainant had failed to present any
evidence which would indicate that the agency's articulated legitimate,
nondiscriminatory reasons for not forwarding the applications in October,
1997 were pretextual. The agency subsequently issued a final order in
which it fully implemented the AJ's decision. This appeal followed.
After a careful review of the record, the Commission finds that the AJ's
grant of summary judgment to the agency was appropriate, as no genuine
issue exists as to any material fact. We find that the AJ's decision
properly summarized the relevant facts and referenced the appropriate
regulations, policies, and laws. We also note that the AJ properly
found that the complainant's mere assertion that the agency's articulated
reasons for its actions were based upon unlawful discriminatory animus,
without more, was insufficient to defeat the agency's summary judgment
motion. Further, construing the evidence in the light most favorable
to complainant, we note that the complainant failed to present evidence
that any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes. Therefore, it is the decision
of the Commission to AFFIRM the agency's final decision.
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
July 12, 2002
Date
1 The record does not indicate whether these individuals had a history of
prior EEO activity. All four applicants were, however, more than forty
years old at the time of the agency action, making all four eligible
for coverage under the ADEA.