01a03178
08-30-2000
Richard S. Smith, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Richard S. Smith v. Department of Veterans Affairs
01A03178
August 30, 2000
.
Richard S. Smith,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A03178
Agency Nos. 97-2078, 98-3021
Hearing Nos. 170-98-8196X, 120-99-6028X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination on the bases of race (Black), reprisal (prior
EEO activity), and age (53), 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.<1> Complainant alleges he was discriminated against when
he was not selected for the positions of Electrician's Helper, WG-5,
and Maintenance mechanic, WG-10. The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).
For the following reasons, the Commission AFFIRMS the agency's final
action.
The record reveals that during the relevant time, complainant was employed
as a Housekeeping Aid, WG-2, at the agency's Martinsburg, West Virginia,
Medical Center. Believing he was a victim of discrimination, complainant
sought EEO counseling and thereafter filed a formal complaint on each
of the above-referenced non-selections.
At the conclusion of the investigations, complainant received copies of
the investigative reports and in each case requested a hearing before an
EEOC Administrative Judge (AJ). Following a hearing on the consolidated
complaints, the AJ issued a decision finding no discrimination. The AJ
concluded that while complainant had established a prima facie case of
age and reprisal discrimination with regard to the WG-5 non-selection,
the agency had articulated a legitimate, non-discriminatory explanation
for its actions, which complainant had not shown to be pretextual.
More specifically, the AJ found that neither specialized experience nor a
supplemental statement of qualifications were required for the position,
which was an �upward mobility,� i.e., trainee, position. The AJ further
concluded that while complainant had established a prima facie case
of reprisal discrimination with regard to the WG-10 non-selection, the
agency also had articulated a legitimate, non-discriminatory explanation
for its actions which complainant had not shown to be pretextual; in
this instance, that complainant had failed to submit a supplemental
qualifications statement which was necessary, the absence of which
prevented him from being properly rated and referred on for further
consideration in the selection process. The agency's final action
implemented the AJ's decision.
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as �such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.�
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that, in
all material respects, the AJ's decision summarized the relevant facts
and referenced the appropriate regulations, policies, and laws. The
Commission notes that complainant failed to present evidence sufficient to
establish that the agency's actions were in retaliation for complainant's
prior EEO activity or were motivated by age-discriminatory animus.
The Commission discerns no basis to disturb the AJ's decision, and
therefore, after a careful review of the record, including complainant's
contentions on appeal and the agency's response, AFFIRMS the agency's
final action.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 30, 2000
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.