01A50099_r
01-21-2005
Thomas Melvin, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Thomas Melvin v. Department of Veterans Affairs
01A50099
January 21, 2005
.
Thomas Melvin,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A50099
Agency No. 200R-0805-204101111
Hearing No. 160-2004-00415X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
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. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
Complainant, a Cemetery Caretaker, WG-5, at the agency's Calverton
National Cemetery in Calverton, New York, filed a formal EEO complaint
on January 24, 2004, alleging that the agency discriminated against him
on the bases of race (Caucasian), color (white), and in reprisal for
prior EEO activity when:
on January 6, 2004, he was informed of his non-selection for Engineering
Equipment Operator, WG-5716-7, vacancy announcement number 04-1015.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). The AJ issued a decision without a hearing,
finding no discrimination.
In his decision, the AJ found that complainant established a prima
facie case of race, color and age discrimination because the selectee,
a younger African-American male, not in complainant's protected classes,
was selected for the Engineering Equipment Operator position.<1> As
to complainant's reprisal claim, the AJ determined that complainant
established an inference of reprisal because he engaged in prior protected
activity approximately two and a half months before the non-selection.
The AJ, however, determined that the agency articulated legitimate,
non-discriminatory reasons for the non-selection. The AJ concluded
that complainant failed to establish by a preponderance of the evidence
that the agency's articulated reasons were a pretext to mask unlawful
discrimination.
The AJ found that nine candidates, including complainant, were identified
as being eligible for the position of Engineering Equipment Operator,
WG-5716-7. The AJ found that eight candidates, including complainant,
were eligible for promotion to the subject position, while one candidate
was eligible for reassignment to the subject position. The AJ found
that prior to the interview process, the candidate who was eligible
for reassignment to the subject position withdrew his application.
The AJ found that the selecting official (SO) stated that he prepared
the questions for the interview process. The SO further stated that
he and the Interment Supervisor interviewed and scored each candidate
by using a score sheet. The SO stated that he selected the selectee
based on his high interview scores. Specifically, the SO stated that
the selectee received the second highest score of 146 points, while
complainant received the fourth highest score of 131 points.
Further, the AJ found no evidence to support complainant's contentions
that he was more qualified than the selectee. The AJ further concluded
that he would not second-guess the agency's business decisions.
Regarding complainant's contention that a co-worker heard that another
employee had gone to SO and told him not to make an older employee a
WG-7 because "it takes a long time to teach him how to do the grading,"
the AJ concluded that complainant provided no evidence to support this
contention.
The agency's final order implemented the AJ's decision.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such
that a reasonable fact finder could find in favor of the non-moving
party. Celotex v. Catrett, 477 U.S. 317, 322-323 (1986); Oliver
v. Digital Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988).
A fact is "material" if it has the potential to affect the outcome
of a case. If a case can only be resolved by weighing conflicting
evidence, summary judgment is not appropriate. In the context of an
administrative proceeding, an AJ may properly consider summary judgment
only upon a determination that the record has been adequately developed
for summary disposition.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
Accordingly, the agency's final order implementing the AJ's decision
was proper and is AFFIRMED.
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
January 21, 2005
__________________
Date
1The record reveals that by letter to the agency dated April 23, 2004,
complainant requested that his complaint be amended to include age as a
basis to his complaint. By letter to complainant dated April 27, 2004,
the agency accepted complainant's request to have age (D.O.B. 8/26/44)
added as a basis.