Thomas A. Ficht, Complainant,v.Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionJan 19, 2000
01985980x (E.E.O.C. Jan. 19, 2000)

01985980x

01-19-2000

Thomas A. Ficht, Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.


Thomas A. Ficht, )

Complainant, )

)

v. ) Appeal No. 01983672

) Agency No.

Andrew M. Cuomo, )

Secretary, )

Department of Housing and )

Urban Development, )

Agency. )

______________________________)

DECISION

Thomas A. Ficht (complainant) timely initiated an appeal to the Equal

Employment Opportunity Commission (EEOC) from the final decision of the

agency concerning complainant's claims that the agency violated Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The

appeal is accepted in accordance with EEOC Order No. 960, as amended.

The issues on appeal are whether the agency discriminated against

complainant on the bases of age (62) and reprisal (prior EEO activity)

when he was not selected for the position of Director, Atlanta Community

Planning and Development (CPD) Office and his position as Director,

Program Management Division, Atlanta Field Office, was abolished.

The record shows that in April 1994, the newly created position of

Director, Office of Community Planning and Development (CPD) (the Director

position) was advertised. Complainant applied for the position along

with fifteen (15) other applicants. In July 1994, Complainant was advised

that, as a result of an upcoming agency reorganization, his position of

Director of the Program Management Division (P-1) would be abolished in

August 1994. Complainant sought EEO counseling although P-1 was not

abolished in August 1994 as planned. At the time, Atlanta was officially

a Regional office which had oversight over several Area offices. Under

the reorganization plan, Atlanta would become the Georgia State Office in

keeping with the agency's plan to eliminate the agency's Regional office

layer of management. In December 1994, a candidate (age 52; no prior EEO

activity) was selected for the Director position; the selectee had served

as Acting Director of the Georgia CPD since September 1994. Complainant

sought EEO counseling in February 1995 regarding his nonselection to

the Director position and regarding the abolishment of his P-1 position;

complainant's P-1 position had not yet been eliminated at this time.

In April 1995, the reorganization officially became effective and

complainant filed a formal EEO complaint in May 1995. Effective July

23, 1995, complainant was reassigned to the position of Supervisory

Environmental Officer (SEO) with no loss in pay or grade status.

Initially, the agency dismissed complainant's claim regarding the

elimination of his P-1 position because it involved a proposed action

and complainant never sought EEO counseling when P-1 was actually

eliminated. However, assuming that this dismissal was improper, the

agency analyzed the merits of the evidence relating to the elimination

of P-1. The agency found that complainant failed to produce direct,

statistical or comparative evidence to support his claims of age and

reprisal discrimination. The agency noted that the positions of three

other regional officials in the Atlanta area were eliminated. The agency

also emphasized that all ten (10) regional offices were reorganized

and fifty-four (54) other CPD positions were abolished during the

reorganization.

Regarding complainant's nonselection to the Director position, the agency

found that complainant failed to prove that age or prior EEO activity was

a factor in the selection process. The agency cited the testimony of

the selecting officials (SOs), who stated that their decision was based

on the applicants' qualifications, particularly their oral interviews.

In this regard, the agency emphasized that both SOs testified that

the selectee's overall ability to discuss his plan for achieving the

Department's goals set him apart from complainant. According to the SOs'

testimony, the selectee also displayed a high level of confidence in his

ability to incorporate innovative approaches to managing the Department

and his prior senior management experience was most related to the

position's responsibilities.

Complainant's complaint constitutes a claim of disparate treatment

and the agency properly analyzed it under the three-tiered analytical

framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). See also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993);

Texas Dept. of Community Affairs v. Burdine, 450 U.S.248, 253-256 (1981);

Hochstadt v. Worcester Foundation for Experimental Biology, Inc., 425

F.Supp. 318, aff'd, 545 F.2d 222 (1st. Cir. 1976). See also McKenna

v. Weinburger, 729 F.2d 783, 791 (D.C. Cir. 1984); Burrus v. United

Telephone Co. of Kansas, Inc., 683 F.2d 339, 343 (10th Cir. 1982);

and Loeb v. Textron , Inc., 600 F.2d 1003 (1st Cir. 1979).

Applying these legal standards, the Commission finds that the agency

correctly determined that complainant failed to prove his claims of

age and reprisal discrimination. The Commission finds that the agency

correctly concluded that complainant failed to prove, by a preponderance

of the evidence, that he was discriminated against based on his age or

prior EEO activity. The Commission agrees that the agency's explanations

for complainant's nonselection to the Director's position and the

agency's elimination of P-1 were credible. The Commission took into

consideration that complainant's prior position, P-1, apparently had

some of the responsibilities that a CPD state director's position might

have had. However, the record, nonetheless, shows that P-1 was officially

a regional position which was eliminated in accordance with the agency's

overall reorganization plan. Accordingly, after carefully considering

the record, including complainant's contentions on appeal, we find that

complainant failed to prove that he was discriminated against based on

his age and prior EEO activity.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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 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:

Jan 19,2000

DATE Carlton 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: