01a00076
03-31-2000
Said W. Zewari, Complainant, v. Daniel S. Goldin, Administrator, National Aeronautics and Space Administration, Agency.
Said W. Zewari, )
Complainant, )
)
v. ) Appeal No. 01A00076
) Agency No. NCN-98-GSFC-A012
Daniel S. Goldin, ) Hearing No. 120-99-6220X
Administrator, )
National Aeronautics and Space )
Administration, )
Agency. )
_______________________________ )
DECISION
Complainant filed the instant appeal from the agency's September 3, 1999
decision finding that the agency did not discriminate against complainant
based on complainant's race (Asian), national origin (India), age
(date of birth: August 1, 1943), and in retaliation for prior protected
activity.<1> The instant matter involves the following claims:<2>
Was the complainant discriminated against when he was not rated/ranked
high enough for consideration and selection for three positions advertised
under Vacancy Announcements 97-125-CB and 97-143-CB.
A hearing was held before an EEOC Administrative Judge. An administrative
judge issued a bench decision dated June 30, 1999. The administrative
judge found that complainant failed to establish a prima facie case
of race, national origin, or age discrimination or a prima facie case
of reprisal. The administrative judge found that complainant failed
to establish that any of the decision-makers, including the rating
panel members, knew of complainant's race, national origin, age,
or his prior protected activity. The administrative judge also found
that the agency articulated legitimate, non-discriminatory reasons for
the referral and selections of the Selectees. The administrative judge
found that one of the Selectees was not considered by the rating panel,
but was automatically referred to the selecting official because of
her grade level. The administrative judge found that the Selectees'
applications led to them being referred instead of complainant because:
�Their applications evidence detailed reviews and discussions of
experience under each of the KSAs [knowledges, skills, and abilities].�
The administrative judge further found:
Complainant argued that he was better qualified than any of the selectees
or any of those referred by the panels. However, because of his education
and prior experience not being clearly demonstrated within his resume,
it is very difficult to arrive at a conclusion that Complainant is better
qualified than any of those employees.
If, in fact, Complainant is better qualified, he failed to present that
in his application in an organized and coherent manner such that the
panelists could see that.
The administrative judge concluded that complainant failed to show by a
preponderance of the evidence that the agency discriminated against him
on the bases of race, national origin, or age or in retaliation for prior
protected activity when he was not selected for any of the positions at
issue.
In the agency's September 3, 1999 decision the agency concurred with
the administrative judge's decision.
After reviewing the entire record, including complainant's many and
detailed arguments, we find that the administrative judge correctly
found that complainant failed to prove by a preponderance of the evidence
that he was discriminated against on the bases of race, national origin,
or age or in retaliation for prior protected activity. In particular,
we find that the rating of complainant below those further considered
for selection was likely in great part due to complainant's failure to
tailor his application to the KSA's as was done by the other applicants.
There is no indication in the record that any of the selection decisions
or ratings were motivated by complainant's race, national origin, or
age or in retaliation for prior protected activity.
The agency's decision finding no discrimination is AFFIRMED.
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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 co
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:
March 31, 2000
______________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_____________________ _________________________ Date
Equal Employment Assistant
1On 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.
2A portion of the complaint had been previously dismissed on procedural
grounds. The agency found that complainant withdrew two of the accepted
issues on April 28, 1999 at a pre-hearing conference. Complainant does
not argue on appeal that the agency or administrative judge improperly
ignored any claims.