01972701
05-24-2000
S. Philip Neri, Complainant, v. Arthur Levitt, Jr., Chairman, Securities and Exchange Commission, Agency.
S. Philip Neri v. Securities and Exchange Commission
01972701
May 24, 2000
S. Philip Neri, )
Complainant, )
) Appeal No. 01972701
v. ) Agency No. 24-94
) Hearing No. 100-95-7731X
Arthur Levitt, Jr., )
Chairman, )
Securities and Exchange Commission, )
Agency. )
____________________________________)
DECISION
S. Philip Neri (complainant) timely initiated an appeal from the agency's
final decision (FAD) concerning his equal employment opportunity (EEO)
complaint of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.<1> The appeal is accepted pursuant to 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. � 1614.405). Complainant
alleges he was discriminated against on the bases of race (Hispanic),
national origin (Hispanic) and disability (hearing impairment) when:
(1) he was denied a reasonable accommodation during the interview for
a staff accountant position on January 24, 1994;
he was treated differently than others outside his protected classes
when he was not allowed to review the interview questions when
interviewing for this staff accountant position; and
he was not selected for the staff accountant position.
BACKGROUND
The record reveals that complainant, a Consumer Affairs Specialist,
filed a formal EEO complaint with the agency on May 12, 1994, alleging
that the agency had discriminated against him as referenced above.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). Following a hearing, the AJ issued a decision
finding no discrimination.
The AJ first noted that the parties had stipulated that complainant
is a qualified individual with a disability within the meaning of the
Rehabilitation Act.<2> The AJ went on to find that complainant had
not been denied a reasonable accommodation when the interviewing panel,
composed of the Branch Chief of Analytical Services (BC) and the Assistant
Director of Electronic Data Gathering and Retrieval (AD), refused to allow
him to review the interview questions. The AJ found that complainant had
failed to show that he needed an accommodation to compete effectively
for the position because the record established that he could hear and
understand all of the questions without the requested accommodation.
Turning to complainant's disparate treatment claims, the AJ found that
although there was conflicting evidence as to whether the selectee (S1)
was allowed to review the questions during the interview, there was no
evidence that complaint had been harmed because he had not been allowed
to review the questions. The AJ found that complainant had not been
selected because of the responses that he had given to the questions and
that there was no evidence that he would have responded to the questions
differently had he been allowed to review them.
Finally, the AJ concluded that the agency articulated a legitimate reason
for selecting S1 over complainant and that complainant failed to establish
that this reason was a pretext for race, national origin, or disability
discrimination. Specifically, the agency stated that S1 had been selected
because he was more qualified and noted that complainant discussed
less complex accounting models in answering questions and provided one
answer which demonstrated grossly poor judgment. Although complainant
contended that S1 did not meet the minimum requirements for the position,
the AJ found that this was clearly not the case and that S1 was properly
referred to the selecting official. The AJ concluded that complainant
had not shown that his qualifications were so clearly superior to S1's
qualifications as to warrant a finding of discrimination. Finally,
the AJ found, contrary to complainant's argument, that the agency did
not have a legal obligation to select complainant under an affirmative
employment plan.
Based on these findings, the AJ recommended a finding of no
discrimination. The agency adopted this recommended decision.
CONTENTIONS ON APPEAL
On appeal, complainant reiterates his contentions that he was denied
a reasonable accommodation and not selected due to his race, national
origin, and disability. He also cites a number of alleged discrepancies
in the testimony of agency witnesses and argues that he would have
answered the interview questions differently had they been more specific.
Finally, he asserts that the AJ abused her discretion when she denied
his motion to review the tape recording of the administrative hearing.
In response, the agency basically reiterates the position set forth
by the AJ and adopted in its FAD, although a few new points are also
noted. The agency argues that the AJ did not abuse her discretion
in denying complainant's request to review the tapes of the hearing
because complainant failed to identify any specific omissions, despite
a conference held in response to the motion during which complainant,
his counsel, the agency's counsel, and the AJ reviewed the transcript.
FINDINGS AND ANALYSIS
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 regarding whether or not
discriminatory intent existed 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 the
AJ's decision properly summarized the relevant facts and referenced
the appropriate regulations, policies, and laws. Assuming, arguendo,
that complainant is a disabled individual within the meaning of
the Rehabilitation Act, he failed to establish that he needed an
accommodation. A reasonable accommodation can include a modification
or adjustment to a job application process that enables a qualified
applicant with a disability to be considered for the position such
qualified applicant desires. 29 C.F.R. � 1630.2(o) (emphasis added).
The record supports the AJ's finding that complainant heard and understood
the questions clearly and correctly and that his answers were responsive,
if not well received. Therefore, complainant failed to establish that
he needed an accommodation to participate effectively in the interview
or to be considered for the position.
Furthermore, complainant failed to establish that the agency's articulated
reason for selecting S1 over him was a pretext for discrimination.
BC and AD testified that they found S1 to be better qualified due to his
understanding of complex accounting models, his ability to analyze and
synthesize information across industry trends and his significant computer
program experience. BC and AD also noted that when asked what he would do
to reconcile apparent discrepancies in an accounting model, complainant
replied that he would not do anything if the model did not work once,
and that this answer indicated to them that complainant had poor judgment.
In a non-selection case, a complainant may demonstrate pretext in
a number of ways, including a showing that his qualifications are
observably superior to those of the selectee. Bauer v. Bailor, 647
F.2d 1037. 1048 (10th Cir. 1981); Williams v. Department of Education,
EEOC Request No. 05970561 (August 6, 1998). In the case at hand,
complainant asserted that he was better qualified than S1, arguing
that S1 did not even meet the minimum requirements for the job. The AJ
concluded, however, that S1 did meet the minimum qualifications and that
complainant's qualifications were not clearly superior. The documentary
and testimonial evidence supports these conclusions.
Complainant also argued that S1 was allowed to review the questions,
whereas complainant was not. While it appears that this was the case,
complainant failed to establish that he would have answered the questions
differently had he been allowed to review them. Indeed, complainant
essentially argued that the questions were not specific enough and that
had they been more specific, he would have provided different answers
that better illustrated his experience. The record is clear, however,
that S1 was asked the same questions as complainant and, based on both
applicants' answers, BC and AD felt S1 to be the better candidate.
Commission precedent holds that selecting officials have the discretion
to choose from among equally qualified candidates and that their decision
should not be second guessed by the reviewing authority without evidence
of unlawful motivation. See Fodale v. Department of Health and Human
Services, EEOC Request No. 05960344 (October 16, 1998). It is not clear
in the case at hand that anyone participating in the interviews of S1
and complainant would have found complainant to be as qualified as S1.
Even assuming, however, that S1 and complainant are equally qualified,
complainant failed to provide evidence of unlawful motivation.
Finally, we find that the AJ did not abuse her discretion in refusing
to allow complainant to listen to a portion of the tape recording of
the hearing. The agency representative, complainant's representative
and the AJ examined the transcript and could not identify any portion
that was inaccurate, nor did complainant describe a specific inaccuracy
or omission. Although complainant contends that the use of ellipses
in the transcript implies that testimony was omitted, it is clear from
the record that ellipses were used to indicate that the speaker paused
mid-sentence. Under our regulations, the AJ has the power to regulate
the conduct of the hearing and we find that her decision in this matter
was not an abuse of discretion. See 64 Fed.Reg. 37,644, 37,656 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.109).
Accordingly, we discern no basis to disturb the AJ's decision. After a
careful review of the record, including complainant's contentions on
appeal, the agency's response, and arguments and evidence not specifically
addressed in this decision, we AFFIRM the agency's final decision.
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:
May 24, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment. Since that time,
the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints
of disability discrimination. These regulations can be found on EEOC's
website at www.eeoc.gov.