01981085
11-13-1998
Te Tseng Liu, Appellant, v. Louis Caldera, Secretary, Department of the Army, (Defense Language Institute Foreign Language Center), Agency.
Te Tseng Liu v. Department of the Army
01981085
November 13, 1998
Te Tseng Liu, )
Appellant, )
) Appeal No. 01981085
v. ) Agency No. SAC-96-AR-0808-E
) Hearing No. 370-97-X2477
Louis Caldera, )
Secretary, )
Department of the Army, )
(Defense Language Institute )
Foreign Language Center), )
Agency. )
)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency concerning his
allegation that the agency violated 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 U.S.C. �621 et seq.
The Commission hereby accepts the appeal in accordance with EEOC Order
No. 960, as amended.
The issue presented is whether appellant proved, by a preponderance
of the evidence, that he was discriminated against because of his sex
(male), national origin (Chinese), age (83), and in reprisal for prior
EEO activity when he was not selected for the temporary position of
Training Coordinator (Chinese Language), GS-1712-11.
On appeal, appellant makes many contentions, chief among them that one
selectee (ST), a Caucasian, had an inferior grasp of the Chinese language,
the interview panel members were management officials who didn't know
Chinese, and there were no standardized answers to the questions used in
the interview. In response, the agency notes that the Administrative Judge
(AJ) found that appellant's allegations are "grounded on speculation,
not on evidence," and that, therefore, appellant "cannot demonstrate that
his non-selection for a temporary GS-11 position was based on unlawful
evidence."
At the time of his complaint, appellant was employed by the agency as
a Training Instructor (Chinese-Mandarin), GS-712-09. Believing that he
was a victim of discrimination, appellant sought EEO counseling and later
filed the instant complaint dated July 15, 1996. The agency complied with
all procedural and regulatory prerequisites, and on September 24, 1997,
the AJ, determining that there was no issue of material fact, issued
a Recommended Decision (RD) without a hearing finding no discrimination
on any basis. Subsequently, the agency adopted the RD as its own final
decision.
After a careful review of the record in its entirety, the Commission
finds that the AJ's RD summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We therefore discern no
basis to disturb the AJ's finding of no discrimination.
In particular, we note that appellant was not able to demonstrate that
the agency's legitimate, nondiscriminatory reason for not selecting him,
that he did not receive an interview panel score as high as the STs, was
a pretext to mask discrimination. In this regard, appellant complained
that one ST had a inferior grasp of Chinese, and that the panel members
were all management personnel who didn't know Chinese. Yet any inference
of pretext is rebutted by the selecting official's testimony that the
interview questions did not attempt to measure language proficiency
but rather management skills, since the positions to be filled were as
team leaders. The candidates were assumed beforehand to have sufficient
language proficiency, as they needed it for their initial hire.
Appellant also attempted to prove pretext by pointing out that there
were no standardized answers to the questions asked. Interview scores
were thus not based on facts but were arbitrarily arrived at, and the
scores were therefore not a valid means of selection.
While appellant may argue that the lack of standardized answers made the
choice of STs premised on subjective criteria, where, as here, selection
involves promotion to the managerial level, the use of subjective criteria
is generally acceptable. Camillas v. U.S. Navy, 735 F.2d 338, 345 (9th
Cir. 1984); Page v. U.S. Industries, 726 F.2d 1038, 1053 (5th Cir. 1984).
The interview questions allowed for more than one right answer as their
purpose was to ascertain the management skills of the applicants, skills
which are not readily measurable by objective means. It is accordingly
the decision of the EEOC to AFFIRM the agency's final decision.
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:
Nov 13, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations