Sampath S. Krishnan, Complainant,v.Mary E. Peters, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionSep 26, 2007
0120072862 (E.E.O.C. Sep. 26, 2007)

0120072862

09-26-2007

Sampath S. Krishnan, Complainant, v. Mary E. Peters, Secretary, Department of Transportation, Agency.


Sampath S. Krishnan,

Complainant,

v.

Mary E. Peters,

Secretary,

Department of Transportation,

Agency.

Appeal No. 0120072862

Agency No. 200518296FAA02

Hearing No. 100200600028X

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's

appeal from the agency's May 1, 2007, final order concerning his equal

employment opportunity (EEO) complaint alleging employment discrimination

in violation of Title VII of the Civil Rights Act of 1964 (Title VII),

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.

On December 16, 2004, complainant filed a complaint claiming

discrimination based on race (Asian), national origin (Indian), sex

(male), religion (Hindu), color (Brown), age (D.O.B. 07/06/43), and

reprisal for prior protected EEO activity when (a) he was not selected

for one of six positions as Program Manager in September 2004; and (b)

he was harassed and subjected to a hostile work environment in reprisal

for filing the instant complaint. Following an investigation, complainant

requested a hearing before an EEOC Administrative Judge (AJ). The agency

filed a Motion for a summary judgment, which complainant opposed; on

April 11, 2007, the AJ issued a decision granting the agency's motion.

The agency adopted the AJ's decision that it did not discriminate against

complainant.

At the time of the events herein, complainant was a Communications

Management Specialist. He contended that, as to (a), that the agency

favored employees of other races, that his work was menial, and that he

was more qualified and experienced than the six selectees. To support his

claim of hostile work environment, he averred that the selecting office,

his second-line supervisor (S2), made a remark that "this is not a place

of cow chasing." The agency stated that complainant's application package

was properly evaluated and was among nine employees interviewed by the

selection panel, consisting of three managers from different parts of

the agency. The names and scores were forwarded to S2, who picked the

first six highest-scoring candidates; complainant ranked seventh and was

not selected. As to the remark described by complainant, S2 contended

that he had no recollection of making such a statement, nor did any

other employees. The AJ held that the agency articulated legitimate,

nondiscriminatory reasons for its selection decisions, i.e., it selected

the six candidates deemed best qualified and that S2's remark, if made,

was not sufficiently severe or pervasive to rise to the level of illegal

harassment.1

On appeal, complainant repeated arguments properly made before the AJ

and did not present probative evidence in support of his claims for

which he had the ultimate burden of proof to demonstrate pretext by

preponderant evidence. After a review of the record in its entirety

and consideration of all statements submitted on appeal, including those

not specifically addressed, it is the decision of the Equal Employment

Opportunity Commission to affirm the agency's final order, because

the Administrative Judge's issuance of a decision without a hearing

was appropriate,2 and a preponderance of the record evidence does not

establish that discrimination occurred.3

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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 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 (S0900)

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

___9/26/07_______________

Date

1 The AJ also found that complainant did not show previous EEO activity,

in that, complainant's application was not EEO activity.

2 In the context of an administrative proceeding, an AJ may properly

consider issuing a decision without a hearing only upon a determination

that the record has been adequately developed for summary disposition.

See Petty v. Department of Defense, EEOC Appeal No. 01A24206 (July 11,

2003); Murphy v. Dept. of the Army, EEOC Appeal No. 01A04099 (July 11,

2003). After a careful review of the record, the Commission finds that

the AJ appropriately issued a decision without a hearing, as complainant

failed to proffer sufficient evidence to establish that a genuine issue

of material fact exists such that a hearing on the merits is warranted.

3 The Supreme Court has held that, in the absence of evidence of a

discriminatory motivation, an employer generally "has discretion to choose

among equally qualified candidates...." Texas Department of Community

Affairs v. Burdine, , 450 U.S. 248, 259 (1981). Also, the Court recently

addressed the question of comparative qualifications as evidence of

pretext and held that, to demonstrate pretext, the complainant must show

that her/his qualifications were significantly more superior than those

of the selectee. See Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006).

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0120072862

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120072862