01a52086
07-26-2005
Stanley Byrd, Complainant, v. Bruce R. James, Public Printer, United States Government Printing Office, Agency.
Stanley Byrd v. United States Government Printing Office
01A52086
July 26, 2005
.
Stanley Byrd,
Complainant,
v.
Bruce R. James,
Public Printer,
United States Government Printing Office,
Agency.
Appeal No. 01A52086
Agency Nos. 02-20 and 02-02
Hearing No. 100-2003-08489X
DECISION
Complainant initiated an appeal from the agency's final order, dated
December 16, 2004, concerning his equal employment opportunity (EEO)
complaint of unlawful employment discrimination. For the following
reasons, the Commission AFFIRMS the agency's final order.
The record reveals that complainant, a Supervisory Supply Systems
Analyst at the agency's Washington, D.C. facility, filed formal EEO
complaints on October 19, 2001, and March 15, 2002, alleging that the
agency discriminated against him on the bases of race (African-American),
religion (Baptist Minister), age (46), and reprisal<1> for prior EEO
activity when:
Case number 02-02
Complainant was not selected for the position of Supervisory Management
Analyst (SMA), PG-343-13, advertised under Vacancy Announcement Number
00-371.
Case number 02-20
Complainant was not selected for the position of Marketing Specialist
(MS), PG-1101-13, advertised under Vacancy Announcement, Number 01-148.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). Following a hearing, the AJ issued a decision, dated November
17, 2004, finding no discrimination.
The AJ concluded that complainant established a prima facie case of race,
religion, age discrimination and with respect to the second non-selection,
reprisal discrimination because the selectees were not in complainant's
protected classes. The record shows that the selectee for the MS
position was a younger Caucasian employee, of a different religion.
The selectee for the SMA position was also a Caucasian employee, with
no prior EEO participation.
The AJ further concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. The AJ found that complainant
did not show, for either claim, that his qualifications were plainly
superior to those of the selectee. Rather, regarding the MS position,
the AJ found that the application of the selectee revealed significantly
more marketing experience both in terms of years of experience and scope
and depth of experience. Further, regarding the SMA position, the AJ
found that while complainant does have many more years of experience,
the selectee for that position is not inexperienced, as she had been
with the Agency for eight years, and worked in the very area for which
she was selected.
The AJ found that complainant did not establish that more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination/retaliation. In reaching this conclusion, the AJ found
that complainant presented insufficient evidence that any act by either
selecting official (for the MS or the SMA position) was motivated by
prohibited factors such as race, age, religion or retaliation. Moreover,
the AJ found the testimony of the selecting officials credible when
testifying regarding their reasons for selecting the candidates they
did for the subject positions.
The agency's final order implemented the AJ's decision.
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ 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). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
After a careful review of the record, the Commission finds that the AJ's
findings of fact are supported by substantial evidence in the record
and that the AJ's decision properly summarized the relevant facts and
referenced the appropriate regulations, policies, and laws. We note that
complainant failed to present evidence that any of the agency's actions
were in retaliation for complainant's prior EEO activity or were motivated
by discriminatory animus toward complainant's race, religion or that but
for complainant's age, he would have been selected. We discern no basis
to disturb the AJ's decision. Therefore, after a careful review of the
record, we AFFIRM the agency's final order finding no discrimination.
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
July 26, 2005
__________________
Date
1Complainant claimed reprisal as a basis for agency case number 02-20
only.