05A20353
04-24-2002
Robert E. Morgan, Complainant, v. Elaine Chao, Secretary, Department of Labor, (Employment Standards Administration), Agency.
Robert E. Morgan v. Department of Labor
05A20353
April 24, 2002
.
Robert E. Morgan,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
(Employment Standards Administration),
Agency.
Request No. 05A20353
Appeal No. 01A10419
Agency No. 903080
DENIAL OF REQUEST FOR RECONSIDERATION
Complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Robert
E. Morgan v. Department of Labor, EEOC Appeal No. 01A10419 (January
7, 2002). EEOC Regulations provide that the Commission may, in its
discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In the underlying complaint, complainant contends that he was
discriminated against in violation of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. based on his age
(date of birth: February 21, 1964) when he was nonselected for the GS-13
position of Supervisory Wage-Hour Compliance Specialist, and on the basis
of reprisal (filing prior EEO complaints) when he received a performance
appraisal for the period of May 1, 1998 to April 30, 1999 with a reduced
rating on element three of �meets described level of performance.�
In his request for reconsideration, complainant, through his attorney,
contends that the Commission and the agency overlooked numerous facts
in the record that are material to the case, as well as points of law.
Additionally, he contends that there will be a negative impact if the
decision is not reversed. Complainant makes the following principal
contentions:
Complainant's qualifications are plainly superior to those of selectee;
The Selecting Official (SO) gives �shifting reasons� for his nonselection
of complainant in different places in the investigative record, and
therefore, fails to articulate a legitimate, nondiscriminatory reason;
The selectee presented a false impression of the breadth of his
experience on his application;
SO's selection process deviated from agency procedures and the
requirements of the Collective Bargaining Agreement (CBA);
There was a lack of documentation to support the evaluation of
complainant's performance.
The agency's investigation was inadequate.
We find that the investigation was adequate and that the agency met
its burden of articulating legitimate, nondiscriminatory reasons for
its actions. We note that the agency's is not an onerous one. In the
case at hand, the Commission finds that despite SO's alleged �shifting
reasons� in the investigative record, the agency has set forth, with
sufficient clarity, reasons for complainant's nonselection such that he
has been given a full and fair opportunity to demonstrate that those
reasons are pretext. See Parker v. United States Postal Service, EEOC
Request No. 05900110 (April 30, 1990): Lorenzo v. Department of Defense,
EEOC Request No. 05950931 (November 6, 1997).
Additionally, even assuming that the agency did depart from the its
usual procedure, and from the CBA, and also assuming that the selectee
did overstate his qualifications in his application, we are not
persuaded that but for complainant's age he would have been selected.
Hazen Paper Company v. Biggins, 507 U.S. 604, 610 (1993) (age had �a
role in the process and a determinative influence in the outcome.�).
Substantial evidence of record indicates that SO preferred selectee
for the position because he had proven to be less likely to challenge
or correct him than complainant. SO viewed complainant as more likely
to challenge him because he had a history of doing so. The following
statements of record also support this point: (1) complainant states
that his role would require that he point out the deficiencies of the
district director; (2) SO states that he preferred the selectee's
description of his role as requiring him �to support the decisions of
the district director and the regional and national offices�; and, (3)
SO stated to complainant that he �did not want to argue about whether or
not something could be done.� These statements indicate that SO felt he
would be required to engage in arguments of this nature with complainant,
but not with the selectee. We are also not persuaded that complainant's
qualifications rise to the level of being plainly superior to those of
the selectee. Wasser v. Department of Labor, EEOC Request No. 05940058
(November 2, 1995); Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
As to the performance appraisal, we are not persuaded that reprisal
motivated the rating that complainant received.
After a review of complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01A10419 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
April 24, 2002
__________________
Date