05971037
09-10-1999
Richard G. Eilers, Appellant, v. Carol M. Browner, Administrator, Environmental Protection Agency, Agency.
Richard G. Eilers v. Environmental Protection Agency
05971037
September 10, 1999
Richard G. Eilers, )
Appellant, )
) Request No. 05971037
v. ) Appeal No. 01956063
)
Carol M. Browner, )
Administrator, )
Environmental Protection Agency, )
Agency. )
)
DENIAL OF RECONSIDERATION
On August 28, 1997, Richard G. Eilers (hereinafter referred to as
appellant) initiated a request to the Equal Employment Opportunity
Commission (Commission) to reconsider the decision in Richard G. Eilers
v. Carol M. Browner, Administrator, Environmental Protection Agency, EEOC
Appeal No. 01956063 (August 14, 1997). EEOC Regulations provide that the
Commissioners may, in their discretion, reconsider any previous decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons set forth herein, appellant's
request is denied.
ISSUE PRESENTED
The issue presented herein is whether the previous decision properly
affirmed the agency's finding that appellant had not been subjected
to age (49) discrimination when he was nonselected for the position
of Supervisory Environmental Engineer, GM-819-14, or the position of
Supervisory Environmental Scientist, GM-1301-14, in September 1991.
BACKGROUND
The record in the case herein reveals that appellant, an Operations
Research Analyst, GS-1515-13, in the Drinking Water Research Division of
the agency's Risk Reduction Engineering Laboratory (REEL), filed a formal
complaint in December 1991, alleging age (49) discrimination with regard
to the above-referenced nonselections. According to the record, the
vacancies arose as a result of increased personnel in appellant's Branch,
which led to the creation of two sections, the engineering cost section
and the treatment operations section. The Branch Chief stated that he
submitted a position description to the Personnel Office, and discussed
the duties with the Personnel Management Specialist. The Branch Chief
stated that the engineering cost section would involve the management of
a multidisciplinary staff, while the treatment operations section would
handle more chemistry, biology, and pilot plant work. The Personnel
Management Specialist then determined that the environmental engineer
and environmental scientist series would be the most appropriate
areas of consideration. Appellant applied for the positions, but did
not qualify therefor. Specifically, appellant, who did not possess a
degree in engineering or physical science, lacked the requisite hours of
course work. Subsequently, two other individuals (Selectee 1, 45 years;
and Selectee 2, 54 years) were selected for the positions.
Appellant asserted that the Branch Chief defined the requirements of
the positions in such a way as to eliminate him from consideration.
In addition, appellant stated that the Branch Chief preselected two
individuals (one of whom was ultimately not chosen) for the positions.
Appellant contended that the Branch Chief and the Division Director
perceived him as having a "retirement mentality," and assumed he would
be unresponsive and inflexible if chosen for the vacancies. (Report of
Investigation, Exhibit 5).
The Branch Chief stated that he was surprised that appellant's name did
not appear on the referral certificate, and questioned the Personnel
Office about the matter. The Branch Chief stated that, nevertheless,
the Selectees were the most qualified candidates for the positions.
The Branch Chief noted that he chose not to readvertise the positions to
include appellant's job series, because he believed the original position
description accurately described the required duties. It is noted that
the Personnel Management Specialist stated that she was not aware of a
management position in the REEL which included the Operations Research
Analyst job series, and the record reveals only one such individual,
selected 20 years previously, occupying a management position in the REEL.
The Division Director concurred with the Branch Chief's testimony.
The Branch Chief and Division Director denied having knowledge of
appellant's retirement plans.
On June 14, 1995, an EEOC Administrative Judge (AJ) issued a recommended
decision in the matter finding no discrimination.<1> Specifically,
the AJ determined that appellant failed to establish a prima facie
case, in that, he was not qualified for the positions. The AJ noted
that the Personnel Management Specialist found that appellant lacked
the requisite number of physical science courses. The AJ rejected
appellant's assertion that the positions were deliberately classified so
as to exclude him from consideration, stating that appellant presented
no evidence to support that contention. The AJ also found no evidence
to support appellant's claim that the Branch Chief and Division Director
considered his retirement plans. Finally, the AJ stated that appellant
also failed to show that the persons selected for the positions were
outside of his protected group. The agency adopted the AJ's recommended
decision, and the final agency decision was affirmed on appeal.
In his request for reconsideration, appellant asserted that the AJ
improperly disallowed 42 proposed witnesses. Further, appellant stated
that the agency readvertised several positions in 1995 in order to
consider more applicants.
The agency countered that appellant's request did not meet the criteria
for reconsideration.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of the
criteria of 29 C.F.R. �1614.407(c) is met. In order for a case to
be reconsidered, the request must contain specific information which
meets the requirements of this regulation. It should be noted that the
Commission's scope of review on a request to reconsider is limited. Lopez
v. Department of the Air Force, EEOC Request No. 05890749 (September 28,
1989).
After a careful review of the previous decision, appellant's request for
reconsideration, the agency's response thereto, and the entire record,
the Commission finds that appellant's request fails to meet the criteria
in 29 C.F.R. �1614.407(c). The Commission notes that while the AJ stated,
in part, that appellant failed to establish a prima facie case because
he did not show that individuals outside of his protected group were
selected for the positions, appellant must only present evidence which, if
unrebutted, would support an inference that the agency's actions resulted
from discrimination. See O'Connor v. Consolidated Coin Caters Corp.,
116 S.Ct. 1307 (1996); Enforcement Guidance on O'Connor v. Consolidated
Coin Caters Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996).
Nevertheless, the Commission agrees with the AJ that appellant has
not shown that he met the minimum qualifications for the positions.
Further, we find appellant's contention that the Branch Chief defined the
requirements of the positions so as to exclude him from consideration to
be unpersuasive. In so finding, the Commission notes that an independent
review of appellant's witness requests, as well as arguments raised
during the hearing, fail to show any error on the part of the AJ in
disallowing the testimony of named individuals. Finally, information
concerning selections made in 1995 would not be relevant to the actions
at issue herein. Consequently, based on our review of the record, we
find that appellant has failed to provide evidence which would warrant
a reconsideration of the previous decision.
CONCLUSION
After a review of appellant's request for reconsideration, the agency's
response thereto, the previous decision, and the entire record, the
Commission finds that appellant's request fails to meet the criteria of 29
C.F.R. �1614.407(c), and it is therefore the decision of the Commission
to DENY appellant's request. The decision in EEOC Appeal No. 01956063
(August 14, 1997) remains the Commission's final decision. There is no
further right of administrative appeal on a decision of the Commission
on this Request for Reconsideration.
STATEMENT OF RIGHTS - ON RECONSIDERATION
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:
September 10, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1The Commission had remanded the complaint for an administrative hearing,
finding that the previous AJ erred in issuing a recommended decision without
a hearing. Eilers v. EPA, EEOC Appeal No. 01940744 (September 22, 1994).