01970509
05-20-1999
Ronald E. Gale, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Ronald E. Gale, )
Appellant, )
)
v. ) Appeal No. 01970509
) Agency No. AR000960565
F. Whitten Peters, ) Hearing No. 360-95-8039X
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
Appellant timely appealed the agency's final decision that it had
not discriminated against him 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 C.F.R. �
621 et seq. In the instant complaint, appellant alleged that the agency
discriminated against him on the bases of reprisal (prior EEO activity),
and age (D.O.B. 10/20/41), when the agency partially dismissed his prior
EEO complaint involving nonselection, and this nonselection complaint
was processed differently than other EEO complaints. The Commission
accepts this appeal in accordance with EEOC Order No. 960.001.
The record reveals that appellant was employed by the agency as
an Attorney-Advisor at Randolph Air Force Base (AFB), Texas (Equal
Employment Opportunity office (EEO office)). Appellant represents the
agency in litigation involving, inter alia, EEO complaints and adverse
actions before the Merit Systems Protection Board (MSPB). In July 1993,
appellant applied for an Environmental Attorney position with the agency.
However, he was notified that he was not selected. On February 9, 1994,
appellant filed the nonselection EEO complaint. In its March 24, 1994,
final agency decision (FAD), the agency dismissed a portion of this
nonselection complaint on the grounds of untimeliness. On appeal,
the Equal Employment Opportunity Commission (EEOC) affirmed the FAD.
Gale v. United States Air Force, EEOC Appeal No. 01943105 (October 7,
1994).
It is clear from the record that the agency's EEO complaints customarily
are processed for �legal sufficiency review� by the EEO office. However,
appellant's complaint was referred for processing to a different EEO
office. The agency treats the instant complaint as an independent
claim of discrimination with respect to the processing of appellant's
nonselection complaint.
Following an investigation of the instant complaint, appellant requested a
hearing before an EEOC administrative judge (AJ). Pursuant to 29 C.F.R. �
1614.109(e), the AJ issued a Recommended Decision (RD) without a hearing,
finding no discrimination.
The AJ found that appellant established a prima facie case of
discrimination based on reprisal. However, the AJ concluded that the
agency articulated a legitimate, nondiscriminatory reason for its actions,
which appellant failed to establish as pretextual. Specifically,
appellant's nonselection complaint was processed in a different EEO
office in order to avoid a potential conflict of interest, or such an
appearance. Otherwise, appellant's office would have represented the
agency against appellant in processing this complaint. Furthermore,
the AJ determined that appellant's argument that this complaint was
also improperly handled because the EEO counselor obtained additional
affidavits, is without merit. The record reflects that appellant's
attorney concurred with such processing.
With respect to age discrimination, the AJ found that appellant failed
to establish a prima facie case of discrimination. Appellant was
not similarly situated to the comparator. The AJ concluded that the
comparator's complaint, unlike appellant's, involved a continuing
violation allegation with respect to work assignments and constant
harassment. Assuming that appellant had established a prima facie case
of age discrimination, the AJ concluded that the agency articulated
legitimate non-discriminatory reasons for its actions. Age was not a
factor in the agency's processing of appellant's complaint. On September
23, 1996, the agency issued a final decision, adopting the AJ's finding of
no discrimination. It is from this decision that appellant now appeals.
After a careful review of the entire record, including arguments and
evidence not specifically addressed in this decision, the Commission
finds that the AJ's recommended decision sets forth the relevant facts,
and properly analyzes the appropriate regulations, policies, and laws
applicable to appellant's complaint as a disparate treatment claim.
Therefore, the Commission discerns no basis to disturb the AJ's finding
of no discrimination. Accordingly, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
finding no discrimination.
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. � l6l4.604(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:
5/20/99
DATE Carlton M. Hadden, Acting Director Office of
Federal Operations